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VILLAGE  -  COMMUNITIES 


EAST    AND    WEST 


SIX  LECTURES  DELIVERED  AT  OXFORD 


TO   WHICH  ARE  ADDED  OTHEB 


LECTURES,  ADDRESSES  AND  ESSAYS 


Sir   HENRY    SUMNER    MAINE 

K.C.S.I.,   LL.D.,   r.K.S.    '■' 

AUTHOR  OF   "ancient  LAW"  AND  "THE  EABLT  HISTOBY  Or  INST1IUTION3. ' 


NEW  YORK 

HENRY  HOLT  AND  COMPANY 

1889 


AUTHORS  EDITION. 


PEEFACE 

TO    THE 

THIKD   AND   ENLAKGED    EDITION. 


As  a  Third  Edition  of  the  Lectures  constituting  the 
volume  on  'Village-Communities  in  the  East  and 
West '  is  now  required,  it  has  been  thought  desirable 
to  add  to  them  some  other  Lectm-es,  Addresses,  and 
Essays  by  the  author.  All  of  them,  except  the  last, 
will  be  found  to  have  a  bearing  on  subjects  treated 
of  in  the  Lectures  on  Village- Communities, 

The  Rede  Lecture,  on  the  '  Effects  of  Observation 
of  India  on  Modern  European  Thought,'  has  been 
published  separately.  The  Essays  on  the  '  Theory 
of  Evidence  *  and  on  '  Roman  Law  and  Legal  Edu- 
cation' appeared  respectively  in  the  Fortnightly 
Review  and  in  the  Cambridge  Essays.  The  three 
Addresses  delivered  by  the  author  in  the  capacity  of 
Vice-Chancellor  of  the  University  of  Calcutta  have 
not  before  been  printed  in  this  country. 

London  :  February  1876. 


PEEFAOE 

TO    THE 

FIKST  EDITION  OF  'VILLAGE-COMMUNITIES 
IN  THE   EAST   AND   WEST.' 


The  Six  Lectures  which  follow  were  designed  as 
an  introduction  to  a  considerably  longer  Course,  of 
which  the  object  was  to  point  out  the  importance, 
in  juridical  enquiries,  of  increased  attention  to  the 
phenomena  of  usage  and  legal  thought  which  are 
observable  in  the  East.  The  writer  had  not  intended 
to  print  these  Lectures  at  present ;  but  it  appeared 
to  a  part  of  his  audience  that  their  publication  might 
possibly  help  to  connect  two  special  sets  of  investi- 
gations, each  of  which  possesses  great  interest,  but 
is  apparently  conducted  in  ignorance  of  its  bearing 
on  the  other.  The  fragmentary  character  of  the  work 
must  be  pleaded  in  excuse  for  the  non-performance 
of  some  promises  which  are  given  in  the  text,  and 
for  some  digressions  which,  with  reference  to  the 
main  subject  of  discussion,  may  appear  to  be  of  un- 
reasonable length. 


Vm  TEEFACE  TO  THE  PIBST   EDITION. 

The  eminent  German  writers  whose  conclusions 
are  briefly  summarised  in  the  Third  and  Fifth 
Lectures  are  comparatively  little  known  in  England, 
and  a  list  of  their  principal  works  is  given  in  the 
Second  Appendix.  For  such  knowledge  of  Indian 
phenomena  as  he  possesses  the  writer  is  much  in- 
debted to  the  conversation  of  Lord  Lawrence,  whose 
capacity  for  the  political  direction  of  the  natives  of 
India  was  acquired  by  patient  study  of  their  ideas 
and  usages  during  his  early  career.  The  principal 
statements  made  in  the  text  concerning  the  Indian 
Village -Communities  have  been  submitted  to  Sir 
George  Campbell,  now  Lieut.-Governor  of  Bengal, 
who  has  been  good  enough  to  say  that  they  coincide 
in  the  main  with  the  results  of  his  own  experience 
and  observation,  which  have  been  very  extensive. 
No  general  assertions  are  likely  to  be  true  without 
large  qualification  of  a  country  so  vast  as  India, 
but  every  effort  has  been  made  to  control  the  state- 
ments of  each  informant  by  those  of  others. 

Some  matter  has  been  introduced  into  the  Lectures 
which,  for  want  of  time,  was  omitted  at  their  de- 
livery. 

February  1871. 


CONTENTS. 


LECTURE  I. 

THE   EAST,    AND    THE  STUDY    OF   JUKISPRUDENCB. 

CJomparative  Jurisprudence — Comparative  and  Historical  Methodan- 
The  Past  and  the  Present — Limits  of  Comparative  Jurispru- 
dence— Method  of  Comparison — Enquiries  of  Von  Maurer — The 
Mark  and  English  Law — Eastern  and  Western  Communities — ■ 
Characteristics  of  Lidio- Modern  Theories  of  Race — The  Patri- 
archal Family — Barbarous  Forms  of  the  Family — Origin  of  Law 
in  the  Family — Village- Community — Law  of  Nature — Codified 
Brahminical  Law — Feudal  System — Conditions  of  Juridical 
Study — English  Ignorance  of  India — Disappearance  of  Indian 
Phenomena — Influence  of  Western  Ideas — Influence  of  Physical 
Science — Influence  of  British  Empire         .         .         .         page  1 

LECTURE   n. 

THE   SOURCES    OF   INDIAN   LAW. 

Indian  Settlements — Settlement  and  Revenue  Courts — The  Civil 
Courts — The  Indian  Judicial  System — The  Supreme  Courts — 
English  Law  in  India — Indian  Opinion  on  English  Law — ^Locality 
of  Custom — The  Will  of  Bengal — Wills  and  Collective  Property 
— A  Modern  Indian  Will — The  Sudder  Court — Influence  of  Sudder 
Courts — Development  of  Hindoo  Law — Effect  of  Juridical  Com- 
mentaries— The  Bar  and  English  Law — Mahometan  Law — The 
Pundits — Codified  Hindoo  Law — ^Varieties  of  Native  Usage — 
The  Written  Law — Hindoo  Widow's  Estate — Preservation  of 
Customary  Law — Caste  in  India- — Tradition — Different  Forms  of 
Tradition — Popular  Ignorance  of  Law  in  England — The  Experts 
and  English  Law — Indian  and  Teutonic  Village  Systems       .     3J 

a 


X  CONTENTS 

LECTURE  III. 

THE   WESTERN   VILLAGE-COMMUNITI 

Antiquity  of  Indian  Customary  Law — Traditional  Law — Analysis 
of  a  Law — Indian  Conceptions  of  Law — English  Influence  on 
Legal  Conceptions — Unwilling  Assumption  of  Sovereignty — In- 
fluence of  Courts  of  Justice — Change  in  Nature  of  Usage — 
Growth  of  Conception  of  Eight — Influence  of  P^nglish  Law- 
Connection  of  Eastern  and  Western  Custom — Von  Maurer — • 
The  Teutonic  Village-Community — The  Arable  Mark — English 
Theories  of  Land-Law — The  Arable  Mark  in  England — Shifting 
Severalties — The  Common  Fields — Their  Great  Extent — Extract 
from  Marshall — Scott  on  Udal  Tenures — Commonty  of  Lauder — 
Peculiarities  of  Scottish  Example — Vestiges  of  the  Mark,  page  65 

LECTURE  IV. 

THE  EASTERN   VILLAGE-COMMUNITY. 

The  Indian  Village- Community — Mahometan  Theory  of  Ownership 
— Land  Settlement  of  Bengal — The  Indian  Proprietary  Unit — 
The  Indian  Village — The  Cultivated  Land — The  Growth  of 
Custom — Water  Rules — The  Sources  of  Primitive  Law — 
Customs  of  Re-partition — The  Village — Secrecy  of  Family  Life — 
Dislike  of  English  Criminal  Law — Fictions  Attending  Legislation 
— Village  Rules — Origin  of  Indian  Towns — Indian  Capitals — The 
Village  Waste — The  Indian  Wastes — The  Government  and  the 
Wastes — The  Village  Council — Peaceful  Character  of  Population 
— Hereditary  Trades — Remuneration  of  Village  Traders — The 
Outsiders — ^Absorption  of  Strangers  by  Community  103 

LECTURE  V. 

THE   PROCESS   OF   FEUDALISATION. 

Feudalism — The  Benefices — The  Manor — The  Manorial  Group — 
New  Condition  of  the  Waste — Changes  in  the  Grass-lands — The 
Free  Tenants — Settlements  of  Villeins — The  Manorial  Courts — 
Encroachments  of  the  Lord — Roman  and  Feudal  Law — Causes  of 


CONTENTS.  SI 

f  eudaiiaation — Growth  of  Suzerainties — Leading  Families — Ele- 
ments of  Feudal  System — Systematic  Feudalism — Antiquarianism 
of  Indian  Politics — Political  Results  of  Settlements — Varioua 
Forms  of  Settlement — Growth  in  Power  of  Official  Holder — 
Mahometan  Assumptions — Indian  Schools  of  Opinion — Indian 
Forms  of  Property — The  Headman — Property  Eecognised  by  the 
English — Absolute  Ownership — ^Nature  of  Eights  of  Property — 
Development  of  Absolute  Ownership — Vested  Rights  in  India— 
The  Feudalisation  of  Exirope — Cultivation  of  Waste-land — Im- 
provements in  Tillage — Village-Communities  and  Customs — 
Customary  Tillage — Servile  Dependents  of  Villagers — ^Villages 
cease  to  absorb  Strangers — Nasse's  Work — The  Statute  of  De- 
vises— Rules  for  Construing  Wills — Restraints  on  Testamentary 
Power PAGE  131 

LECTURE  VL 

THE   EAELY   HISTORY   OF   PRICE   AND    KENT, 

Structure  o£  Village-Communities — Divisions  of  the  Commimity — 
Property  within  the  Community — Traditions  as  to  Rights — Exac- 
tions of  Indian  Sovereigns — Indian  Rent — Difficulty  of  Question 
— Anglo-Indian  Ideas — Customary  and  Competition  Rents — The 
Protected  Tenants — Indian  and  English  Forms  of  Property — True 
Character  of  Prablem — The  Irish  Clan — Rack-Rent  paid  by 
Strangers — ^Primitive  Notions  as  to  Price — Early  Measure  of 
Price — Basis  of  Political  Economy — The  Market — Markets  and 
Neutrality — Influence  of  Market  Law — Sentiments  adverse  to 
Political  Economy — Primitive  Commercial  Principles — Influ- 
ence of  Carrying  Trade — Price  and  Rent — Market  for  Land  in 
England — ^New  Information  required — ViUage-Communitiea  in 
America 175 

The  Effects  of  Observation  of  India  on  Modern  Eubopean 
Thought  (Rede  Lecture) 203 

Address  to  University  of  Calcutta,  I.         .         .        ,        240 

Address  to  University  of  Calcutta,  II.         •        «        -        25| 


2U1  CONTENTS. 

Address  to  Univebsitt  of  Calcutta,  IIL       •       •        paox  275 

The  Theory  of  Evidence 295 

KouAN  Law  and  Legal  Education        ••       •        •        .        330 

Appendices  : — 

L — Minute  recorded  on  October  1,  1868         .        387 
II. — Eecent    German    Works    bearing    on    the 

SUBJECT     of     the     LECTURES     ON     VlLLAGE- 
COMMUNITIES 393 

Note  A.         •.••••••        399 

Indss     •»•»•«.        «»t        403 


VILLAGE -COMMUNITIES 


IN    THE 


EAST    AND   WEST. 

LECTURE    I. 
THE  EAST,  AND  THE  STUDY  OF  JUEISPRUDENCE. 


B 


CONTENTS. 

Comparative  Jurisprudence — Comparative  and  Historical  Methods — 
The  Past  and  the  Present — Limits  of  Comparative  Jurisprudence 
— Method  of  Comparison — Enquiries  of  Von  Maurer — The  Mark 
and  English  Law — Eastern  and  Western  Communities — Charac- 
teristics of  Indio-Modern  Theories  of  Race — The  Patriarchal 
Family — Barbarous  Forms  of  the  Family — Origin  of  Law  in  the 
Family — Village-Community — Law  of  Nature — Codified  Brah- 
minical  Law — Feudal  System — Conditions  of  Juridical  Study — 
English  Ignorance  of  India — Disappearance  of  Indian  Phenomena 
— Influence  of  Western  Ideas — Influence  of  Physical  Science — 
Influence  of  British  Empire. 


LECTURE  I. 

THE    EAST,    AND    THE    STUDY    OF   JURISPKUDEXCE. 

In  the  Academical  Statute  which  defines  the  duties  of 
the  Professor  of  Jurisprudence,  the  branches  of  en- 
quiry to  which  he  is  directed  to  address  himself  are 
described  as  the  investigation  of  the  history  and 
principles  of  law,  and  the  comparison  of  the  laws  of 
various  communities.  The  Lectures  to  which  I  am 
about  to  ask  jour  attention  will  deal  in  some  detail 
with  the  relation  of  the  customary  law  of  the  East, 
and  more  particularly  of  India,  to  the  laws  and  usages, 
past  and  present,  of  other  societies;  but,  as  we  are 
employed  upon  a  subject — and  this  is  a  warning  which 
cannot  be  too  soon  given — in  which  ambiguities  of 
expression  are  extraordinarily  common  and  extremely 
dangerous,  I  perhaps  should  state  at  once  that  the 
comparison  which  we  shall  be  making  will  not  con 
stitute  Comparative  Jurisprudence  in  the  sense  in 
which  those  words  are  understood  by  most  modern 
jurists,  or  in  that  which,  I  think,  was  intended  by  the 
authors  of  the  statute.  Comparative  Jurisprudence  in 
this  last  sense  has  not  for  its  object  to  throw  light  upon 

B  2 


4  COMPAEATIVE   JUKISPRUDENCE.  tECT.  1, 

the  history  of  law.  Nor  is  it  universally  allowed  that 
it  throws  light  upon  its  philosophy  or  principles, 
What  it  does,  is  to  take  the  legal  systems  of  two  dis- 
tuict  societies  under  some  one  head  of  law — as  for 
example  some  one  kind  of  Contract,  or  the  department 
of  Husband  and  Wife — and  to  compare  these  chapters 
of  the  systems  under  consideration.  It  takes  the 
heads  of  law  which  it  is  examining  at  any  point  of 
their  historical  development,  and  does  not  affect  to 
discuss  their  history,  to  which  it  is  indifferent.  What 
is  the  relation  of  Comparative  Jurisprudence,  thus 
understood,  to  the  philosophy  of  law  or  the  determi- 
nation of  legal  priQciple,  is  a  point  on  which  there 
may  be  much  difference  of  opinion.  There  is  not  a 
little  in  the  writings  of  one  of  the  greatest  of  modern 
juridical  thinkers,  John  Austin,  which  seems  to  imply 
that  the  authors  and  expositors  of  civilised  systems 
of  law  are  constrained,  by  a  sort  of  external  compul- 
sion, to  think  in  a  particular  way  on  legal  principles, 
and  on  the  modes  of  arriving  at  juridical  results. 
That  is  not  my  view ;  but  it  is  a  view  which  may  de- 
serve attentive  consideration  on  some  other  occasion. 
It  would,  however,  be  universally  admitted  by  com- 
petent j  urists,  that,  if  not  the  only  function,  the  chief 
function  of  Comparative  Jurisprudence  is  to  facilitate 
legislation  and  the  practical  improvement  of  law.  It 
is  found,  as  matter  of  fact,  that  when  the  legislators 
(and  I  here  use  the  term  in  its  largest  sense)  of  dif 


tscT.  I.  COMPAEATIVE   JURISPKUDEXCE.  5 

ferent  communities  pursue,  as  they  frequently  do,  the 
same  end,  the  mechanism  by  which  the  end  is  at- 
tained is  extremely  dissimilar.  In  some  systems  of 
law,  the  preliminary  assumptions  made  are  much 
fewer  and  simpler  than  in  others;  the  general  pro- 
positions which  include  subsidiary  rules  are  much 
more  concise  and  at  the  same  time  more  comprehen- 
sive, and  the  courses  of  legal  reasonmg  are  shorter 
and  more  direct.  Hence,  by  the  examination  and 
comparison  of  laws,  the  most  valuable  materials  are 
obtained  for  legal  improvement.  There  is  no  branch 
of  juridical  enquiry  more  important  than  this,  and 
none  from  which  I  expect  that  the  laws  of  our  coun- 
try will  ultimately  derive  more  advantage,  when  it 
has  thoroughly  engrafted  itself  upon  our  legal  educa- 
tion. AVithout  any  disparagement  of  the  many  un- 
questionable excellences  of  English  law — the  eminent 
good  sense  frequently  exhibited  in  the  results  which 
it  finally  evolves,  and  the  force  and  even  the  beauty 
of  the  judicial  reasoning  by  which  in  many  cases  they 
are  reached — it  assuredly  travels  to  its  conclusions 
by  a  path  more  tortuous  and  more  interrupted  by 
fictions  and  unnecessary  distinctions  than  anysystem^ 
of  jurisprudence  in  the  world.  But  great  as  is  the 
influence  which  I  expect  to  be  exercised  in  this  coun- 
try by  the  study  of  Comparative  Jurisprudence,  it  is 
not  that  which  we  have  now  in  hand;  and  I  think  it 
is  best  taken  up  at  that  stage  of  legal  education  at 


6  COMPAEATIVE  AND   HISTORICAL   METHODS,      lkct.  l 

which  the  learner  has  just  mastered  a  very  difficult 
and  complex  body  of  positive  law,  like  that  of  our 
own  country.  The  student  who  has  completed  his 
professional  studies  is  not  unnaturally  apt  to  believe 
in  the  necessity,  and  even  in  the  sacredness,  of  all 
the  technical  rules  which  he  has  enabled  himself  to 
command;  and  just  then,  regard  being  had  to  the  in- 
fluence which  everj' lawyer  has  over  the  development 
of  law,  it  is  useful  to  show  him  what  shorter  routes 
to  his  conclusions  have  been  followed  elsewhere  as 
a  matter  of  fact,  and  how  much  labour  he  might 
consequently  have  been  spared. 

The  enquiry  upon  which  we  are  engaged  can  only 
be  said  to  belong  to  Comparative  Jurisprudence,  if 
the  word  '  comparative '  be  used  as  it  is  used  in 
such  expressions  as  '  Comparative  Philology '  and 
*  Comparative  Mythology.'  We  shall  examine  a 
number  of  parallel  phenomena  with  the  view  of 
establishing,  if  possible,  that  some  of  them  are  re- 
lated to  one  another  in  the  order  of  historical  succes- 
sion. I  think  I  may  venture  to  affirm  that  the  Com- 
parative Method,  which  has  already  been  fruitful  of 
such  wonderful  results,  is  not  distinguishable  in  some 
of  its  applications  from  the  Historical  Method.  We 
take  a  number  of  contemporary  facts,  ideas,  and 
customs,  and  we  infer  the  past  form  of  those  facts, 
ideas,  and  customs  not  only  from  historical  records 
of  that  past  form,  but  from  examples   of  it  which 


XECT.  L  THE   PAST  AND   THE    PRESENT.  1 

have  not  yet  died  out  of  the  world,  and  are  still  to 
be  found  in  it.  When  in  truth  we  have  to  some  ex- 
tent succeeded  in  freeing  ourselves  from  that  limited 
conception  of  the  world  and  mankind,  beyond  which 
the  most  civilised  societies  and  (I  will  add)  some 
of  the  greatest  thinkers  do  not  always  rise;  when 
we  gain  something  like  an  adequate  idea  of  the  vast- 
ness  and  variety  of  the  phenomena  of  human  society; 
when  in  particular  we  have  learned  not  to  exclude 
from  our  view  of  the  earth  and  man  those  great  and 
unexplored  regions  which  we  vaguely  term  the  East, 
we  find  it  to  be  not  wholly  a  conceit  or  a  para- 
dox to  say  that  the  distinction  between  the  Present 
a,nd  the  Past  disappears.  Sometimes  the  Past  is  the 
Present;  much  more  often  it  is  removed  from  it 
by  varying  distances,  which,  however,  cannot  be 
estimated  or  expressed  chronologically.  Direct 
observation  comes  thus  to  the  aid  of  historical 
enquiry,  and  historical  enquiry  to  the  help  of  direct 
observation.  The  characteristic  difficulty  of  the 
historian  is  that  recorded  evidence,  however  saga- 
ciously it  may  be  examined  and  re-examined,  can 
very  rarely  be  added  to;  the  characteristic  error  of 
the  direct  observer  of  unfamiliar  social  or  juridical 
phenomena  is  to  compare  them  too  hastily  with 
familiar  phenomena  apparently  of  the  same  kind. 
But  the  best  contemporary  historians,  both  of 
England  and  of  Germany,  are  evidently  striving   to 


8  LIMITS    OF   COMPARATIVE   JURISPRUDENCE.      tKOT.  I 

increase  their  resources  through  the  agency  of  the 
Comparative  Method;  and  nobody  can  have  been 
long  in  the  East  without  perceiving  and  regretting 
that  a  great  many  conclusions,  founded  on  patient 
personal  study  of  Oriental  usage  and  idea,  are  vitiated 
through  the  observer's  want  of  acquaintance  with 
some  elementary  facts  of  Western  legal  history. 

I  should,  however,  be  making  a  very  idle  pre- 
tension if  I  held  out  a  prospect  of  obtaining,  by 
the  application  of  the  Comparative  Method  to  juris- 
prudence, any  results  which,  in  point  of  interest  or 
trustworthiness,  are  to  be  placed  on  a  level  with 
those  which,  for  example,  have  been  accomplished 
in  Comparative  Philology.  To  give  only  one  reason, 
the  phenomena  of  human  society,  laws  and  legal 
ideas,  opinions  and  usages,  are  vastly  more  affected 
by  external  circumstances  than  language.  They  are 
much  more  at  the  mercy  of  individual  volition,  and 
consequently  much  more  subject  to  change  effected 
deliberately  from  without.  The  sense  of  expediency 
or  convenience  is  not  assuredly,  as  some  great  writers 
have  contended,  the  only  source  of  modification  in 
law  and  usage  ;  but  still  it  undoubtedly  is  a  cause  of 
change,  and  an  effective  and  powerful  cause.  The 
conditions  of  the  convenient  and  expedient  are, 
however,  practically  infinite,  and  nobody  can  reduce 
them  to  rule.  And  however  mankind  at  certain 
stages   of  development   may   dislike   to   have  their 


lEcr.  1.  METHOD   OF   COMPARISOX.  t 

usages  changed,  they  always  probably  recognise 
certain  constraining  influences  as  sufficient  reasons 
for  submitting  to  new  rules.  There  is  no  country, 
probably,  in  which  Custom  is  so  stable  as  it  is  in 
India ;  yet  there,  competing  with  the  assumption 
that  Custom  is  sacred  and  perpetual,  is  the  very 
general  admission  that  wdiatever  the  sovereign  com- 
mands is  Custom.  The  greatest  caution  must  there- 
fore be  observed  in  all  speculations  on  the  inferences 
derivable  from  parallel  usages.  True,  however,  as 
this  is,  there  is  much  to  encourage  further  attention 
to  the  observed  phenomena  of  custom  and  further 
observation  of  customs  not  yet  examined.  To  take 
very  recent  instances,  I  know  nothing  more  striking 
among  Mr.  Freeman's  many  contributions  to  our 
historical  knowledge  than  his  identification  of  the 
fragments  of  Teutonic  society,  organised  on  its 
primitive  model,  which  are  to  be  found  in  the  Forest 
Cantons  of  Switzerland.  This,  indeed,  is  an  example 
of  an  archaic  political  institution  w^hich  has  survived 
to  our  day.  The  usages  which  it  has  preserved  are 
rather  political  than  legal ;  or,  to  put  it  in  another 
way,  they  belong  to  the  domain  of  Public  rather  than 
to  that  of  Private  law.  But  to  usages  of  this  last 
class  clearly  belong  those  samples  of  ancient  Teutonic 
agricultural  customs  and  ancient  Teutonic  forms  of 
property  in  land  which  Von  Maurer  has  found  to 
occur  in  the  more  backward  parts  of  Germany.     I 


10  ENQUIRIES   OF  VON   MAURER.  mot.  I 

shall  have  to  ask  a  good  deal  of  your  attention  here- 
after to  the  results  announced  by  the  eminent  writer 
whom  I  have  just  named;  at  present  I  will  confine 
myself  to  a  brief  indication  of  his  method  and  con- 
clusions and  of  their  bearing  on  the  undertaking 
we  have  in  hand. 

Von  Maurer  has  written  largely  on  the  Law  of 
the  Mark  or  Township,  and  on  the  Law  of  the 
Manor.  The  Township  (I  state  the  matter  in  my 
own  way)  was  an  organised,  self-acting  group  of 
Teutonic  families,  exercising  a  common  proprietor- 
ship over  a  definite  tract  of  land,  its  Mark,  cultivat- 
ing its  domain  on  a  common  system,  and  sustaining 
itself  by  the  produce.  It  is  described  by  Tacitus  in 
the  '  Germany  '  as  the  '  vicus '  ;  it  is  well  known  to 
have  been  the  proprietary  and  even  the  political  unit 
of  the  earliest  English  society;  it  is  allowed  to  have 
existed  among  the  Scandinavian  races,  and  it  sur- 
vived to  so  late  a  date  in  the  Orkney  and  Shetland 
Islands  as  to  have  attracted  the  personal  notice  of 
Walter  Scott.  In  our  own  country  it  became  ab- 
sorbed in  larger  territorial  aggregations,  and,  as  the 
movements  of  these  larger  aggregations  constitute 
the  material  of  political  history,  the  political  histo- 
rians have  generally  treated  the  Mark  as  having 
greatly  lost  its  interest.  Mr.  Freeman  speaks  of  the 
politics  of  the  Mark  as  having  become  the  politics 
of  the  parish  vestry.     But  is  it  true  that  it  has  lost 


UBCI.  I.  THE   MAEK  AXD  ENGLISH   LAW.  H 

its  juridical,  as  it  has  lost  its  political  importance? 
It  cannot  reasonably  be  doubted  that  the  Family  was 
the  great  source  of  personal  law  ;  are  there  any 
reasons  for  supposing  that  the  larger  groups,  in 
which  Families  are  found  to  have  been  primitively 
combined  for  the  purposes  of  ownership  over  land, 
were  to  anything  like  the  same  extent  the  sources  of 
proprietary  law?  So  far  as  our  own  countrj-  is  con- 
cerned, the  ordinary  text-books  of  our  law  suggest 
no  such  conclusion  ;  since  they  practically  trace  our 
land-law  to  the  customs  of  the  Manor,  and  assume 
the  Manor  to  have  been  a  complete  novelty  intro- 
duced into  the  world  during  the  process  which  is 
called  the  feudalisation  of  Europe.  But  the  writings 
of  Von  Maurer,  and  of  another  learned  German  who 
has  followed  him,  Nasse  of  Bonn,  afford  strong  reason 
for  thinking  that  this  account  of  our  legal  history 
should  be  reviewed.  The  Mark  has  through  a  great 
part  of  Germany  stamped  itself  plainly  on  land -law, 
on  agricultural  custom,  and  on  the  territorial  distri- 
bution of  landed  property.  Nasse  has  called  atten- 
tion to  the  vestiges  of  it  which  are  still  discoverable 
in  England,  and  which,  until  recently,  were  to  be 
found  on  all  sides  of  us  ;  and  he  seems  to  me  to 
have  at  least  raised  a  presumption  that  the  Mark  is 
the  true  source  of  some  things  which  have  never  been 
satisfactorily  explained  in  English  real  property  law 
The  work  of  Professor  Nasse  appears  to  me  to 


IS  EASTERN  AND   WESTERN  COMMUNITIES.        lect.  k. 

require  some  revision  from  an  English  professional 
lawyer  ;  but,  beyond  attempting  this,  I  should  pro- 
bably have  left  this  subject  in  the  hands  of  writers 
who  have  made  it  their  own,  if  it  were  not  for  one 
circumstance.  These  writers  are  obviously  unaware 
of  the  way  in  which  Eastern  phenomena  confirm 
their  account  of  the  primitive  Teutonic  cultivating 
group,  and  may  be  used  to  extend  it.  The  Village- 
Community  of  India  exhibits  resemblances  to  the 
Teutonic  Township  which  are  much  too  strong  and 
numerous  to  be  accidental  ;  where  it  diiFers  from  the 
Township,  the  difference  may  be  at  least  plausibly 
explained.  It  has  the  same  double  aspect  of  a  group 
of  families  united  by  the  assumption  of  common  kin- 
ship, and  of  a  company  of  persons  exercising  joint 
ownership  over  land.  The  domain  which  it  occupies 
is  distributed,  if  not  in  the  same  manner,  upon  the 
same  principles  ;  and  the  ideas  which  prevail  within 
the  group  of  the  relations  and  duties  of  its  members 
to  one  another  appear  to  be  substantially  the  same. 
But  the  Indian  Village- Community  is  a  living,  and 
not  a  dead,  institution.  The  causes  which,  trans- 
foraied  the  Mark  into  tbe  Manor,  though  the}'^  may 
be  traced  in  India,  have  operated  very  feebly  ;  and 
over  the  greatest  part  of  the  country  the  Village- 
Community  has  not  been  absorbed  in  any  larger  col 
lection  of  men  or  lost  in  a  territorial  area  of  wider 
extent.     For  fiscal  and  legal  purposes  it  is  the  pro 


tECT.  I.  CHAEACTERISTICS   OF   INDIA.  IS 

prietary  unit  of  large  and  populous  provinces.  It 
is  under  constant  and  careful  observation,  and  the 
doubtful  points  which  it  exhibits  are  the  subject  of 
the  most  earnest  discussion  and  of  the  most  vehe- 
ment controversy.  No  better  example  could  there- 
fore be  given  of  the  new  material  which  the  East,  and 
especially  India,  furnishes  to  the  juridical  enquirer. 

If  an  ancient  society  be  conceived  as  a  society  in 
which  are  found  existing  phenomena  of  usage  and 
legal  thought  which,  if  not  identical  with,  wear  a  strong 
resemblance  to  certain  other  phenomena  of  the  same 
kind  which  the  Western  World  may  be  shown  to  have 
exhibited  at  periods  here  belonging  chronologically 
to  the  Past,  the  East  is  certamly  full  of  fragments 
of  ancient  society.  Of  these,  the  most  instructive, 
because  the  most  open  to  sustained  observation,  are 
to  be  found  in  India.  The  country  is  an  assemblage 
of  such  fragments  rather  than  an  ancient  society 
complete  in  itself.  The  apparent  uniformity  and 
even  monotony  which  to  the  new  comer  are  its  most 
impressive  characteristics,  prove,  on  larger  experience, 
to  have  been  merely  the  cloudy  outline  produced  by 
mental  distance ',  and  the  observation  of  each  succeed- 
ing year  discloses  a  greater  variety  in  usages  and 
ideas  which  at  first  seemed  everywhere  identical. 
Yet  there  is  a  sense  in  which  the  first  impressions  of 
the  Englishman  in  India  are  correct.  Each  indi- 
vidual  in   India   is  a  slave   to   the  customs  of  the 


14  MODERX   THEORIES    OF   RACE.  iFXTT.  I 

group  to  which  he  belongs ;  and  the  customs  of  the 
several  groups,  various  as  they  are,  do  not  differ 
from  one  another  with  that  practically  infinite 
variety  of  difference  which  is  found  in  the  habits 
and  practices  of  the  individual  men  and  women  who 
make  up  the  modern  societies  of  the  civilised  West. 
A  great  number  of  the  bodies  of  custom  observable 
in  India  are  strikingly  alike  in  their  most  im- 
portant features,  and  leave  no  room  for  doubt 
that  they  have  somehow  been  formed  on  some 
common  model  and  pattern.  After  all  that  has  been 
achieved  in  other  departments  of  enquiry,  there 
would  be  no  great  presumption  in  laying  down,  at 
least  provisionally,  that  the  tie  which  connects  these 
various  systems  of  native  usage  is  the  bond  of  com- 
mon race  between  the  men  whose  life  is  regulated 
by  them.  If  I  observe  some  caution  m  using  that 
language  on  the  subject  of  common  race  which  has 
become  almost  popular  among  us,  it  is  through  con- 
sciousness of  the  ignorance  under  which  we  labour 
of  the  multitudinous  and  most  interesting  societies 
which  envelope  India  on  the  North  and  East. 
Everybody  who  has  a  conception  of  the  depth  of 
this  ignorance  wiU  be  on  his  guard  against  any 
theory  of  the  development  or  inter- connection  of 
usage  and  primitive  idea  which  makes  any  preten- 
sions to  completeness  before  these  societies  have 
been  more  accurately  examined. 


lEcr.  L  THE   PATEIARCHAL   FAMILY.  1ft 

Let  me  at  this  point  attempt  to  indicate  to  you 
the  sort  of  instruction  which  India  may  be  expected 
to  yield  to  the  student  of  historical  jurisprudence. 
There  are  in  the  history  of  law  certain  epochs  which 
appear  to  us,  with  such  knowledge  as  we  possess,  to 
mark  the  beginning  of  distinct  trains  of  legal  ideas 
and  distinct  courses  of  practice.  One  of  these  is  the 
formation  of  the  Patriarchal  Family,  a  group  of  men 
and  women,  children  and  slaves,  of  animate  and  in- 
animate property,  all  connected  together  by  common 
subjection  to  the  Paternal  Power  of  the  chief  of  the 
household.  I  need  not  here  repeat  to  you  the  proot 
which  I  have  attempted  to  give  elsewhere,  that  a 
great  part  of  the  legal  ideas  of  civilised  races  may 
be  traced  to  this  conception,  and  that  the  history 
of  their  development  is  the  history  of  its  slow 
unwinding.  You  may,  however,  be  aware  that 
some  enquirers  have  of  late  shown  themselves 
not  satisfied  to  accept  the  Patriarchal  Family  as 
a  primary  fact  in  the  history  of  society.  Such  dis- 
inclination is,  I  think,  very  far  from  unnatural.  The 
Patriarchal  Family  is  not  a  simple,  but  a  highly 
complex  group,  and  there  is  nothing  in  the  super- 
ficial passions,  habits,  or  tendencies  of  human  nature 
which  at  all  sufficiently  accounts  for  it.  If  it  is 
really  to  be  accepted  as  a  primary  social  fact,  the 
explanation  assuredly  lies  among  the  secrets  and 
mysteries    of  our  nature,  not  in  any  characteristics 


13  BARBAROUS   FORMS   OF   THE   FAMILY.  lect.  I. 

which  are  on  its  surface.  Again,  under  its  best 
ascertained  forms,  the  Family  Group  is  in  a  high 
degree  artificially  constituted,  since  it  is  freely  re- 
cruited by  the  adoption  of  strangers.  All  this  justi- 
fies the  hesitation  which  leads  to  further  enquiry;  and 
it  has  been  strongly  contended  of  late,  that  by  in- 
vestigation of  the  practices  and  ideas  of  existing 
savage  races,  at  least  two  earlier  stages  of  human 
society  disclose  themselves  through  which  it  passed 
before  organising  itself  in  Family  Groups.  In  two 
separate  volumes,  each  of  them  remarkably  ingenious 
and  interesting,  Sir  John  Lubbock  and  Mr.  McLennan 
conceive  themselves  to  have  shown  that  the  first 
steps  of  mankind  towards  civilisation  were  taken  from 
a  condition  in  which  assemblages  of  men  followed 
practices  which  are  not  found  to  occur  universally 
even  in  animal  nature.  Here  I  have  only  to  observe 
that  many  of  the  phenomena  of  barbarism  adverted 
to  by  these  writers  are  found  in  India.  The  usages 
appealed  to  are  the  usages  of  certain  tribes  or  races, 
sometimes  called  aboriginal,  which  have  been  driven 
into  the  inaccessible  recesses  of  the  widely  extending 
mountain  country  on  the  north-east  of  India  by  the 
double  pressure  of  Indian  and  Chinese  civilisation,  or 
which  took  refuge  in  the  hilly  regions  of  Central  and 
Southern  India  from  the  conquest  of  Brahminical 
invaders,  whether  or  not  of  Aryan  descent.  Many 
of  these  wild  tribes  have  now  for  many  years  beeo 


LECT.  I.  ORIGIN   OF   LAW   IN  THE   FAMILY.  17 

under  British  observation,  and  have  indeed  been 
administered  by  British  Officers.  The  evidence, 
therefore,  of  their  usages  and  ideas  which  is  or 
may  be  forthcoming,  is  very  superior  indeed  to  the 
slippery  testimony  concerning  savages  which  is 
gathered  from  travellers'  tales.  It  is  not  my  inten- 
tion in  the  present  lectures  to  examine  the  Indian 
evidence  anew,  but,  now  that  we  know  what  interest 
attaches  to  it,  I  venture  to  suggest  that  this  evidence 
should  be  carefully  re-examined  on  the  spot.  Much 
which  I  have  personally  heard  in  India  bears  out  the 
caution  which  I  gave  as  to  the  reserve  with  which 
all  speculations  on  the  antiquity  of  human  usage 
should  be  received.  Practices  represented  as  of  im- 
memorial antiquity,  and  universally  characteristic  of 
the  infancy  of  mankind,  have  been  described  to  me 
as  having  been  for  the  iir«t  time  resorted  to  in  our 
own  days  through  the  mere  pressure  of  external 
circumstances  or  novel  temptations. 

Passinor  from  these  wild  tribes  to  the  more  ad- 

o 

vanced  assemblages  of  men  to  be  found  in  India,  it 
may  be  stated  without  any  hesitation  that  the  rest 
of  the  Indian  evidence,  whencesoever  collected,  gives 
colour  to  the  theory  of  the  origin  of  a  great  part 
of  law  in  the  Patriarchal  Family.  I  may  be  able 
hereafter  to  establish,  or  at  all  events  to  r.'dse  a 
presumption,  that  many  rules,  of  which  nobody  has 
hitherto   discerned    the    historical    beginning-^,    had 

c 


18  VILLAGE-COMMUNITY.  ieot.  i 

really  their  sources  in  certain  incidents  of  the  Patria 
Potestas,  if  the  Indian  evidence  may  be  trusted. 
And  upon  that  evidence  many  threads  of  connec- 
tion between  widely  divided  departments  of  law  will 
emerge  from  the  obscurity  in  which  they  have 
hitherto  been  hidden. 

But  the  Patriarchal  Family,  when  occupied  with 
those  agricultural  pursuits  which  are  the  exclusive 
employment  of  many  millions  of  men  in  India,  is 
generally  found  as  the  unit  of  a  larger  natural  group, 
the  Village- Community.  The  Village -Community 
is  in  India  itself  the  source  of  a  land-law  which,  in 
bulk  at  all  events,  may  be  not  unfairly  comparea 
with  the  real-property  law  of  England.  This  law 
defines  the  relations  to  one  another  of  the  various 
sections  of  the  group,  and  of  the  group  itself  to  the 
Government,  to  other  village-communities,  and  to 
certain  persons  who  claim  rights  over  it.  The  corre- 
sponding cultivating  group  of  the  Teutonic  societies 
has  undergone  a  transformation  which  forbids  us  to 
attribute  to  it,  as  a  source  of  land-law,  quite  the  same 
importance  which  belongs  to  the  Indian  Village-Com- 
munity. But  it  is  certainly  possible  to  show  that 
the  transformation  was  neither  so  thorough  as  has 
been  usually  supposed,  nor  so  utterly  destructive  of 
the  features  of  the  group  in  its  primitive  shape. 
When  then  the  Teutonic  group  has  been  re-con- 
structed by  the  help  of  observed  Indian  phenomena 


lacT.  r.  LAW  OF  NATUEE.  10 

— a  process  which  will  not  be  completed  until  both 
sets  of  facts  have  been  more  carefully  examined 
than  heretofore  by  men  who  are  conscious  of  their 
bearing  on  one  another — it  is  more  than  likely  that 
we  may  be  able  to  correct  and  amplify  the  received 
theories  of  the  origin  and  significance  of  English  real- 
property  law. 

Let  me  pass  to  another  epoch  in  legal  history. 
More  than  once,  the  jurisprudence  of  Western  Europe 
has  reached  a  stage  at  which  the  ideas  which  presided 
over  the  original  body  of  rules  are  found  to  have  been 
driven  out  and  replaced  by  a  wholly  new  group  of 
notions,  which  have  exercised  a  strong,  and  in  some 
cases  an  exclusively  controlling  influence  on  all  the 
subsequent  modifications  of  the  law.  Such  a  period 
was  arrived  at  in  Roman  law,  when  the  theory  of 
a  Law  of  Nature  substituted  itself  for  the  notions 
which  lawyers  and  politicians  had  formed  for  them- 
selves concerning  the  origin  and  sanctions  of  the 
rules  which  governed  the  ancient  city.  A  similar 
displacement  of  the  newer  legal  theory  took  place 
when  the  Roman  law,  long  since  affected  in  all  its 
parts  by  the  doctrine  of  Natural  Law,  became,  for 
certain  purposes  and  within  certain  limits,  the  Canon 
law — a  source  of  modern  law  which  has  not  yet  been 
sufficiently  explored.  The  more  recent  jurispru- 
dence of  the  West  has  been  too  extensive  to  have 
been  penetrated  throughout  by  any  new  theory,  hut 

c2 


y 


80  CODIFIED   BRAHMINICAL   LAW.  lbot.  x 

it  will  not  be  difficult  to  point  out  that  f  articular 
departments  of  law  have  come  to  be  explained  on 
moral  principles  which  originally  had  nothing  what- 
ever to  do  with  them,  and  that,  once  so  explained, 
they  have  never  shaken  off  the  influence  of  these 
principles.  This  phenomenon  may  be  shown  to  have 
occurred  in  India  on  a  vast  scale.  The  whole  of 
the  codified  law  of  the  country — that  is,  the  law  con- 
tained in  the  Code  of  Manu,  and  in  the  treatises 
of  the  various  schools  of  commentators  who  have 
written  on  that  code  and  greatly  extended  it — is 
theoretically  connected  together  by  certain  definite 
ideas  of  a  sacerdotal  nature.  But  the  most  recent 
observation  goes  to  prove  that  the  portion  of  the 
law  codified  and  the  influence  of  this  law  are  much 
less  than  was  once  supposed,  and  that  large  bodies 
of  indigenous  custom  have  grown  up  independently 
of  the  codified  law.  But  on  comparing  the  written 
and  the  unwritten  law,  it  appears  clearly  that  the 
sacerdotal  notions  which  permeate  the  first  have 
invaded  it  from  without,  and  are  of  Brahminical 
origin.  I  shall  have  to  advert  to  the  curious  circum- 
stance that  the  influence  of  these  Brahminical  theories 
upon  law  has  been  rather  increased  than  otherwise 
by  the  British  dominion. 

The  beginning  of  the  vast  body  of  legal  rules  which, 
for  want  of  a  better  name,  we  must  call  the  feudal 
system,  constitutes,  for  the  West,  the  gi-eatest  epoch  in 


LOCI.  I.  FEUDAL    SYSTEM.  21 

its  legal  history.  The  question  of  its  origin,  difficult 
enough  in  regard  to  those  parts  of  Europe  conquered 
by  barbarian  invaders  which  were  inhabited  by 
Romanised  populations,  seemed  to  be  embarrassed 
with  much  greater  difficulty  when  it  had  to  be 
solved  in  respect  of  countries  like  England  and 
Germany  Proper,  where  the  population  was  mainly 
of  the  same  blood,  and  practised  the  same  usages,  as 
the  conquerors  of  the  Empire.  The  school  of  German 
writers,  however,  among  whom  Yon  Maurer  is  the 
most  eminent,  appears  to  me  to  have  successfully 
generalised  and  completed  the  explanation  given  in 
respect  of  our  country  by  English  historical  scholars, 
hy  showing  that  the  primitive  Teutonic  proprietary 
system  had  everywhere  a  tendency,  not  produced  from 
without,  to  modify  itself  in  the  direction  of  feudalism ; 
so  that  influences  partly  of  administrative  origin  and 
(so  far  as  the  Continent  is  concerned)  partly  traceable 
to  Roman  law  may,  so  to  speak,  have  been  met  half- 
way. It  will  be  possible  to  strengthen  these  argu- 
ments by  pointing  out  that  the  Indian  system  of 
property  and  tenure,  closely  resembling  that  which 
Maurer  believes  to  be  the  ancient  proprietary  system 
of  the  Teutonic  races,  has  occasionally,  though  not 
universally,  undergone  changes  which  bring  it  into 
something  like  harmony  with  European  feudalism. 

Such  are  a  few  of  the  topics  of  jurisprudence — 
touched  ujjon,  I   must  warn   you,  so  slightly  as  to 


22  COM)ITIONS   OF   JURIDICAL   STUDY.  tucT.  i 

give  a  very  imperfect  idea  of  their  importance  and 
instructiveness — upon  which  the  observed  phenomena 
of  India  may  be  expected  to  throw  light.  I  shall 
make  no  apology  for  calling  your  attention  to  a  line 
of  investigation  which  perhaps  shares  in  the  bad 
reputation  for  dulness  which  attaches  to  all  things 
Indian.  Unfortunately,  among  the  greatest  obsta- 
cles to  the  study  of  jurisprudence  from  any  point  of 
view  except  the  purely  technical,  is  the  necessity  for 
preliminary  attention  to  certain  subjects  which  are 
conventionally  regarded  as  uninteresting.  Every 
man  is  under  a  temptation  to  overrate  the  importance 
of  the  subjects  which  have  more  than  others  occupied 
his  own  mind,  but  it  certainly  seems  to  me  that  two 
kinds  of  knowledge  are  indispensable,  if  the  study  of 
historical  and  philosophical  jurisprudence  is  to  be 
carried  very  far  in  England,  knowledge  of  India,  and 
knowledge  of  Roman  law — of  India,  because  it  is  the 
great  repository  of  verifiable  phenomena  of  ancient 
usage  and  ancient  juridical  thought — of  Roman  law, 
because,  viewed  in  the  whole  course  of  its  develop- 
ment, it  connects  these  ancient  usages  and  this 
ancient  juridical  thought  with  the  legal  ideas  of  our 
own  day.  Roman  law  has  not  perhaps  as  evil  a 
reputation  as  it  had  ten  or  fifteen  years  ago,  but 
proof  in  abundance  that  India  is  regarded  as  su- 
premely uninteresting  is  furnished  by  Parhament; 
the  press,  and  popular  literature.     Yet  ignorance  of 


tECT.  1.  ENGLISH   IGNOEANCE   OF    INDIA.  23 

India  is  more  discreditable  to  Engliishmen  than 
ignorance  of  Roman  lavr,  and  it  is  at  the  same  time 
more  unintelligible  in  them.  It  is  more  discreditable, 
because  it  requires  no  very  intimate  acquaintance 
with  contemporar^y  foreign  opinion  to  recognise  the 
abiding  truth  of  De  Tocqueville's  remark  that 
the  conquest  and  government  of  India  are  really 
the  achievements  which  give  England  her  place  in 
the  opinion  of  the  world.  They  are  romantic 
achievements  in  the  history  of  a  people  which 
it  is  the  fashion  abroad  to  consider  unromantic. 
The  ignorance  is  moreover  unintelligible,  because 
knowledge  on  the  subject  is  extremely  plentiful  and 
extremely  accessible,  since  English  society  is  full  of 
men  who  have  made  it  the  study  of  a  life  pursued 
with  an  ai'dour  of  public  spirit  which  would  be 
exceptional  even  in  the  field  of  British  domestic 
politics.  The  explanation  is  not,  however,  I  think, 
far  to  seek.  Indian  knowledge  and  experience  are 
represented  in  this  country  by  men  who  go  to  India 
all  but  in  boyhood,  and  return  from  it  in  the  matu- 
rity of  years.  The  language  of  administration  and 
government  in  India  is  English,  but  through  long 
employment  upon  administrative  subjects,  a  technical 
language  has  been  created,  which  contains  far  more 
novel  and  special  terms  than  those  who  use  it  are 
commonly  aware.  Even,  therefore,  if  the  great 
Indian  authorities  who  live  among  us  were  in  perfect 


24  DISAPPEARANCE    OF    INDIAN   PHENOMENA.      leot.  1 

mental  contact  witli  the  rest  of  the  community,  they 
could  only  communicate  their  ideas  through  an 
imperfect  medium.  But  it  may  be  even  doubted 
•whether  this  mental  contact  exists.  The  men  of 
whom  I  have  spoken  certainly  underrate  the  ig- 
norance of  India  which  prevails  in  England  on 
elementary  points.  If  I  could  suppose  myself  to 
have  an  auditor  of  Indian  experience,  I  should  make 
him  no  apology  for  speaking  on  matters  which  would 
appear  to  him  too  elementary  to  deserve  discussion  ; 
since  my  conviction  is  that  what  is  wanting  to  unveil 
the  stores  of  interest  contained  in  India  is,  first,  some 
degree  of  sympathy  with  an  ignorance  which  very  few 
felicitous  efforts  have  yet  been  made  to  dispel,  and, 
next,  the  employment  of  phraseology  not  too  highly 
specialised. 

If,  however,  there  are  reasons  why  the  jurist 
should  apply  himself  to  the  study  of  Indian  usage, 
there  are  still  more  urgent  reasons  why  he  sliould 
apply  himself  at  once.  Here,  if  anywhere,  what 
has  to  be  done  must  be  done  quickly.  For  this 
remarkable  society,  pregnant  with  interest  at  every 
point,  and  for  the  moment  easily  open  to  our  obser- 
vation, is  undoubtedly  passing  away.  Just  as  ac- 
cording to  the  Brahminical  theory  each  of  the  Indiar. 
sacred  rivers  loses  in  time  its  sanctity,  so  India  itself 
is  gradually  losing  everything  which  is  characteristic 
of  it.     1  may  illustrate  the  completeness  of  the  trans* 


tECT.  I.  INFLUENCE   OP   WESTERN   IDEAS.  25 

formation  which  is  proceeding  by  repeating  what  I 
have  learned,  on  excellent  authority,  to  be  the  opinion 
of  the  best  native  scholars:  that  in  fifty  years  all 
knowledge  of  Sanscrit  will  have  departed  from  India, 
or,  if  kept  alive,  will  be  kept  alive  by  the  reactive 
influence  of  Germany  and  England.  Such  assertions 
as  these  are  not  inconsistent  with  other  statements 
which  you  are  very  likely  to  have  heard  from  men 
who  have  passed  a  life  in  Indian  administration. 
Native  Indian  society  is  doubtless  as  a  whole  very 
ignorant,  very  superstitious,  very  tenacious  of  usages 
which  are  not  always  wholesome.  But  no  society  in 
the  world  is  so  much  at  the  mercy  of  the  classes 
whom  it  regards  as  entitled  by  their  intellectual  or 
religious  cultivation  to  dictate  their  opinions  to  others, 
and  a  contagion  of  ideas,  spreading  at  a  varying  rate 
of  progress,  is  gradually  bringing  these  classes  under 
the  dominion  of  foreign  modes  of  thought.  Some  of 
them  may  at  present  have  been  very  slightly  afi'ected 
by  the  new  influence ;  but  then  a  comparatively  slight 
infusion  of  foreign  idea  into  indigenous  notions  is 
often  enough  to  spoil  them  for  scientific  observation. 
I  have  had  unusual  opportunities  of  studying  the 
mental  condition  of  the  educated  class  in  one  Indian 
province.  Though  it  is  so  strongly  Europeanised 
as  to  be  no  fair  sample  of  native  society  taken  as  a 
whole,  its  peculiar  stock  of  ideas  is  probably  the 
chief  source  from  which  the  influences  proceed  which 


98  I^^FLUENCE   <)F   PHYSICAL   SCIENCE.  xect.  I 

are  more  or  less  at  work  everywhere.  Here  there 
has  been  a  complete  revolution  of  thought,  in  litera- 
ture, in  taste,  in  morals,  and  in  law.  I  can  only 
compare  it  to  the  passion  for  the  literature  of  Greece 
and  Kome  which  overtook  the  Western  World  at  the 
revival  of  letters;  and  yet  the  comparison  does  not 
altogether  hold,  since  I  must  honestly  admit  that 
much  which  had  a  grandeur  of  its  own  is  being  re- 
placed by  a  great  deal  which  is  poor  and  ignoble. 
But  one  special  source  of  the  power  of  Western  ideas 
in  India  I  mention  with  emphasis,  because  it  is  not 
as  often  recognised  as  it  should  be,  even  by  men  of 
Indian  experience.  These  ideas  are  making  their 
way  into  the  East  just  at  the  period  when  they  are 
themselves  strongly  under  the  influence  of  physical 
knowledge,  and  of  the  methods  of  physical  science. 
Now,  not  only  is  all  Oriental  thought  and  literature 
embarrassed  in  all  its  walks  by  a  weight  of  false 
physics,  which  at  once  gives  a  great  advantage  to  all 
competing  forms  of  knowledge,  but  it  has  a  special 
difficulty  in  retaining  its  old  interest.  It  is  elabo- 
rately inaccurate,  it  is  supremely  and  deliberately 
careless  of  all  precision  in  magnitude,  number,  and 
time.  But  to  a  very  quick  and  subtle-minded  people, 
which  has  hitherto  been  denied  any  mental  food  but 
this,  mere  accuracy  of  thought  is  by  itself  an  in 
tellectual  luxury  of  the  very  highest  order. 

It  would  be  absurd  to  deny  that  the  disintegration 


LECT.  1.         nfFLUENCE   OF  THE   BRITISH   EMPIRE.  27 

of  Eastern  usage  and  thought  is  attributable  to  British 
dominion.  Yet  one  account  of  the  matter  which  is 
very  likely  to  find  favour  with  some  Englishmen  and 
many  foreigners  is  certainly  not  true,  or  only  true 
with  the  largest  qualifications.  The  interference  of 
the  British  Government  has  rarely  taken  the  form  of 
high-handed  repression  or  contemptuous  discourage- 
ment. The  dominant  theory  has  always  been  that 
the  country  ought  to  be  governed  in  conformity  with 
its  own  notions  and  customs ;  but  the  interpretation 
of  these  notions  and  customs  has  given  rise  to  the 
widest  difi'erences  of  opinion,  and  it  is  the  settled 
habit  of  the  partisans  of  each  opinion  to  charge  their 
adversaries  with  disregard  of  native  usage.  The 
Englishman  not  personally  familiar  with  India 
should  always  be  on  his  guard  against  sweeping 
accusations  of  this  sort,  which  often  amount  in  reality 
to  no  more  than  the  imputation  of  error  on  an 
extremely  vague  and  difficult  question,  and  possibly 
a  question  which  is  not  to  be  solved  by  exclusively 
Indian  experience.  If  I  were  to  describe  the  feeling 
which  is  now  strongest  with  some  of  the  most  ener- 
getic Indian  administrators,  I  should  be  inclined  to 
call  it  a  fancy  for  reconstructing  native  Indian  society 
upon  a  purely  native  model  ;  a  fancy  which  some 
would  apparently  indulge,  even  to  the  abnegation  of 
all  moral  judgment.  But  the  undertaking  is  not 
practicable.     It  is  by  its  indirect  and  for  the  most 


28  INFLUENCE   OF   THE   BRITISH   EMPIRE.         usoi.  i 

part  unintended  influence  that  the  British  power 
metamorphoses  and  dissolves  the  ideas  and  social 
forms  underneath  it;  nor  is  there  any  expedient  by 
which  it  can  escape  the  duty  of  rebuilding  upon  its 
own  principles  that  which  it  unwillingly  destroys. 


LISCTITR]S   IL 

THE   SOURCES   OF   INDIAN   LAW 


CONTENTS. 

Indian  Settlements — Settlement  and  Rerenue  Courts — The  Civil 
Courts — The  Indian  Judicial  System — The  Supreme  Coiu-ts — 
English  Law  in  India — Indian  Opinion  on  English  Law — Locality 
of  Custom — The  Will  of  Bengal — AVills  and  Collective  Property 
— A  Modern  Indian  Will — The  Sudder  Court — Influence  of 
Sudder  Courts — Development  of  Hindoo  Law — EiFect  of  Juridical 
Commentaries — The  Bar  and  English  Law — Mahometan  Law — 
The  Pundits — Codified  Hindoo  Law — Varieties  of  Native  Usage — 
The  Written  Law — Hindoo  Widow's  Estate — Preservation  of 
Customary  Law — Caste  in  India — Tradition — Different  Forms  of 
Tradition — Popular  Ignorance  of  Law  in  England — The  Experts 
and  English  Law — Indian  and  Teutonic  Village  Systems. 


LECTURE  II. 

THE   SOURCES    OF   INDIAN   LAW. 

The  bodies  of  customary  law  which  exist  in  India 
have  now  and  then  been  more  or  less  popularly  de- 
scribed by  acute  observers  who  were  led  to  examine 
them  by  curiosity  or  official  duty;  but  on  the  whole 
the  best  information  we  possess  concerning  native 
usage  is  that  which  has  been  obtained  through 
judicial  or  quasi-judicial  agency.  The  agency  which 
I  have  here  called  '  quasi -judicial '  belongs  to  a  part 
of  Anglo- Indian  administration  which  is  very  little 
understood  by  Englishmen,  but  which  is  at  the  same 
time  extremely  interesting  and  instructive.  Its 
origin  and  character  may  be  described  as  follows—- 
inadequately  no  doubt,  but  still  without  substantial 
inaccuracy. 

The  British  Government,  like  all  Eastern  sovereigns, 
claims  a  large  share  of  the  produce  of  the  soil,  most 
of  which,  however,  unlike  other  Eastern  sovereigns, 
it  returns  to  its  subjects  through  the  judicial  and 
administrative     services    which    it    maintains,    and 


82  INDIAN   SETTLEMENTS.  iect.  H. 

through  the  public  works  which  it  systematically 
executes.  Some  person,  or  class  of  persons,  must  of 
course  be  responsible  to  it  for  the  due  payment  of 
this  'land-revenue/  and  this  person  or  class  must 
have  the  power  of  collecting  it  from  the  other 
owners  and  cultivators  of  the  soil.  This  double 
necessity,  of  determining  the  persons  immediately 
responsible  for  its  share  of  the  profits  of  cultivation 
and  of  investing  them  with  corresponding  authority, 
has  involved  the  British  Indian  Government,  ever 
since  the  very  infancy  of  its  dominion,  in  what  I 
believe  to  be  the  most  arduous  task  which  a  govern- 
ment ever  undertook.  It  has  had  not  only  to  frame 
an  entire  law  of  land  for  a  strange  country,  but  to 
effect  a  complete  register  of  the  rights  which  the 
law  confers  on  individuals  and  definite  classes. 
When  a  province  is  first  incorporated  with  the 
Empire,  the  first  step  is  to  efi'ect  a  settlement  or 
adjustment  of  the  amount  of  rent  claimable  by  the 
State.  The  functionaries  charged  with  this  duty 
are  known  as  the  Settlement  Officers.  They  act 
under  formal  instructions  from  the  provincial  govern- 
ment which  has  deputed  them;  they  communicate 
freely  with  it  during  their  enquiries  ;  and  they  Avind 
them  up  with  a  Settlement  Report,  which  is  often 
a  most  comprehensive  account  of  the  new  province, 
its  history,  its  natural  products,  and  above  all  the 
usages  of  its  population.     But  the   most  important 


LECT.  II.         SETTLEHrENT   AND   REVENUE   COURTS.  83 

object  of  the  Settlement  operations — not  second  even 
to  the  adjustment  of  the  Government  revenues — is 
to  construct  a  '  Record  of  Rights,'  which  is  a  detailed 
register  of  all  rights  over  the  soil  in  the  form  in 
which  they  are  believed  to  have  existed  on  the  eve 
of  the  conquest  or  annexation.  Here  it  is  that  the 
duties  of  the  Settlement  Officers  assume  somethins: 
of  a  judicial  character.  The  persons  who  complain 
of  any  proposed  entry  on  the  register  may  insist  on 
a  formal  hearing  before  it  is  made. 

When  the  Record  of  Rights  has  been  completed 
and  the  amount  of  Government  revenue  has  been 
adjusted,  the  functions  of  the  Settlement  Officers  are 
at  an  end,  and  do  not  revive  until  the  period  is  closed 
for  which  the  Settlement  has  been  made.  But,  during 
the  currency  of  this  period,  questions  between  the 
State  and  the  payer  of  land-tax  still  continue  to 
arise  in  considerable  number,  and  it  is  found  practi- 
cally impossible  to  decide  on  such  questions  without 
occasionally  adjudicating  on  private  rights.  Another 
quasi-judicial  agency  is  therefore  that  of  the  function- 
aries who,  individually  or  collectively,  have  jurisdic- 
tion in  such  disputes,  and  who  are  variously  known 
as  Revenue  Officers,  Revenue  Courts,  and  Revenue 
Boards — expressions  extremely  apt  to  mislead  the 
Englishman  unused  to  Indian  official  documents.  The 
Circulars  and  Instructions  issued  by  their  superiors 
to  Settlement  and  Revenue  officers,  their  Reports  and 

D 


S4  THE   CIVIL   COURTS.  lect.  n 

decisions  on  disputed  points,  constitute  a  whole  litera- 
ture of  very  great  extent  and  variety,  and  of  the 
utmost  value  and  instructiveness.  I  am  afraid  1 
must  add  that  the  English  reader,  whose  attention  is 
not  called  to  it  by  official  duty,  not  unusually  finds 
it  very  unattractive  or  even  repulsive.  But  the 
reason  1  believe  to  be  that  the  elementary  knowledge 
which  is  the  key  to  it  has  for  the  most  part  never 
been  reduced  to  writing  at  all. 

So  far  as  the  functions  of  the  Settlement  and 
Revenue  Officers  constitute  a  judicial  agency,  the 
jurisdiction  exercised  by  them  was  at  first  estab- 
lished by  the  British  Government  not  in  its  charac- 
ter of  sovereign,  but  in  its  capacity  of  supreme 
landowner.  It  was  merely  intended  to  enforce  the 
claim  of  the  State  with  some  degree  of  regularity 
and  caution.  The  strictly  judicial  agency  of  which 
I  spoke  is  that  of  the  Civil  Courts,  which  are  very 
much  what  we  understand  in  this  country  by  ordi- 
nary Courts  of  Justice.  Theoretically,  whenever  the 
Settlement  or  Revenue  Courts  decide  a  question  of 
private  right,  there  is  almost  always  (I  need  not 
state  the  exceptions)  an  appeal  from  their  decision  to 
the  Civil  Courts.  Yet,  taking  India  as  a  whole, 
these  appeals  are  surprisingly  few  in  comparison 
with  the  cases  decided.  This  is  one  of  the  reasons 
why  the  literature  of  Settlement  and  Revenue  opera- 
tions is  a  fuller  source  of  information  concerning  the 


LECl.  II.  THE   IKDIAN   JUDICIAL   SYSTEM.  35 

customs  of  ownership  and  tenure  observed  among 
the  natives  of  India  than  the  recorded  decisions  of 
the  Civil  Courts. 

Yet,  though  the  results  of  quasi-judicial  agency  in 
India  are,  on  the  whole,  more  instructive  than  the 
results  of  strictly  judicial  agency,  the  Indian  Civil 
Courts  have  nevertheless  been  largely  instrumental 
in  bringing  into  light  the  juridical  notions  peculiar 
to  the  country,  in  contrasting  them  with  the  legal 
ideas  of  the  Western  world,  and  to  a  certain  extent 
in  subjecting  them  to  a  process  of  transmutation. 
For  reasons  which  will  appear  as  I  proceed,  it  is 
desirable  that  I  should  give  you  some  account  of 
these  courts.  I  will  endeavour  to  do  it  briefly  and 
only  in  outline. 

All  India  at  the  present  moment,  with  the  excep- 
tion of  the  most  unsettled  provinces,  is  under  the 
jurisdiction  of  five  High  or  Chief  Courts.  The  dif- 
ference between  a  High  and  Chief  Court  is  merely 
technical,  one  being  established  by  the  Queen's 
Letters  Patent,  under  an  Act  of  Parliament,  the 
other  by  an  enactment  of  the  Indian  Legislature.  Of 
these  courts,  three  are  considerably  older  than  the 
rest,  and  are  in  fact  almost  as  old  as  the  British 
dominion  in  India.  When,  however,  the  texture  of 
the  jurisdiction  of  the  High  Courts  which  sit  at 
Calcutta,  Madras,  and  Bombay,  is  ex:amiiied,  it  is 
seen   to   consist   of   two   parts,    having   a   different 

D  2 


86  THE   SUPREME   COURTS.  lecx,  n. 

history.  An  Indian  lawyer  expresses  this  by  saying 
that  the  three  older  High  Courts  were  formed  by 
the  fusion  of  the  '  Supreme '  and  '  Sudder '  Courts, 
words  which  have  the  same  meaning,  but  which 
indicate  very  different  tribunals. 

The  Supreme  Courts,  invested  with  special  judicial 
powers  over  a  limited  territory  attached  to  the  three 
old  fortified  factories  of  the  East  India  Company  at 
Calcutta,  Madras,  and  Bombay — or,  as  they  were 
once  called,  and  are  still  called  officially,  Fort  William, 
Fort  St.  George,  and  Bombay  Castle — may  be  shortly 
described  as  three  offshoots  from  Westminster  Hall 
planted  in  India.  They  were  *  Courts  of  Record, 
exercising  Civil,  Criminal,  Admiralty,  and  Ecclesiasti- 
cal jurisdiction,'  and  their  judges  were  barristers 
taken  straight  from  the  English  Bar.  Although  a 
series  of  statutes  and  charters  provided  securities  for 
the  application  of  native  law  and  usage  to  the  cases 
of  their  native  suitors,  and  though  some  of  the 
best  treatises  on  Hindoo  law  which  we  possess  were 
written  by  Supreme  Court  judges,  it  would  not  be 
incorrect  to  say  that  on  the  eve  of  the  enactment 
of  the  several  Indian  Codes,  the  bulk  of  the  jurispru- 
dence administered  by  the  Supreme  Courts  consisted 
of  English  law,  administered  under  English  pro- 
cedure. Lord  Macaulay,  in  the  famous  essay  on 
Warren  Hastings,  has  vividly  described  the  conster- 
nation  which   the   most   important  of  these  courts 


LECT.  n.  ENGLISH   LAW   IN   INDIA.  87 

caused  in  its  early  days  among  the  natives  subject  to 
its  power;  and  there  is  no  doubt  that  the  estabhsh 
ment  of  a  tribunal  on  similar  principles  would  now- 
a-days  be  regarded  as  a  measure  of  the  utmost 
injustice  and  danger.  Yet  there  is  something  to  be 
said  in  mitigation  of  the  condemnation  which  the 
Supreme  Courts  have  received  everywhere  except  ir 
India.  The  great  quantity  of  Enghsh  law  which  had 
worked  its  way  into  their  jurisprudence  is  doubtless 
to  be  partially  accounted  for  by  the  extravagant 
estimate  universally  set  by  English  lawj^ers  upon 
their  own  system,  until  their  complacency  was  rudely 
disturbed  by  Bentham ;  but  at  the  same  time  the 
apparently  inevitable  displacement  of  native  law  and 
usage  by  English  law,  when  the  two  sets  of  rules  are 
in  contact,  is  a  phenomenon  which  may  be  observed 
over  a  great  part  of  India  at  the  present  moment. 
The  truth  is  that  the  written  and  customary  law  ot 
such  a  society  as  the  English  found  in  India  is  not  of 
a  nature  to  bear  the  strict  criteria  apphed  by  EngR^h 
lawyers.  The  rule  is  so  vague  as  to  seem  capable 
of  almost  any  interpretation,  and  the  construction 
which  in  those  days  an  English  lawyer  would  place 
on  it,  would  almost  certainly  be  coloured  by  associa- 
tions collected  from  English  practice.  The  strong 
statements,  too,  which  have  been  made  concerning 
the  unpopularity  of  these  courts  on  their  first 
estabhshment  must  be  received  with  some  caution 


88  INDIAN   OPINION   ON   ENGLISH   LAW.  ijict.  u 

Unquestionably  great  and  general  dismay  was  caused 
by  their  civil  procedure,  conferring  as  it  did   powers 
of  compelling  the  attendance    of  witnesses,  and   oi 
arresting  defendants  both  before  and  after  judgment, 
which  were  quite  foreign  to  the  ideas  of  the  country. 
There  were  constant  complaints,  too,  of  the  applica- 
tion of  the  English  law  of  forgeiy  to  India.     It  is 
true  that,  as  reg-ards  the  case  which  Lord   Macaulav 
has    sketched   with   such   dramatic  force,   Nuncomar 
appears  to  me,  upon  the  records  of  the  proceedings, 
to  have  had  quite  as  fair  a  trial  as  any  Englishman 
of  that  day  indicted  for  forgery  would  have  had  in 
England,  and  to  have  been  treated  with  even  more 
consideration  by  the  Court.     But  the  introduction  of 
the  law  under  which  he  suffered  was  felt  as  a  general 
grievance,  and   there  are   many   representations    on 
the  subject  in  the  archives  of  the  Indian  Government. 
These  archives,  however,  which  have  been  recently 
examined,  and  in  part  published,  seem  to  me  to  prove 
that  the  native  citizens  of  Calcutta,  so  far  from  com- 
plaining of  the  civil  law  imported  by  the  Supreme 
Court  from  Westminster  Hall  and  of  the  bulk  of  the 
criminal  law,  actually  learned  to  echo  the  complacent 
encomiums  on  its  perfection  which  they  heard  from 
English  Judges.     The  fact  appears  to   me   so   well 
sstablished  that  I  venture  to  draw  some  inferences 
from  it.     One  is  of  a  political  nature,  and  need  not 
be  dwelt  on  here.     A  nervous  fear  of  alterino;  native 


I^CT.  n.  LOCALITY  OP   CUSTOM.  88 

custom  has,  ever  since  the  terrible  events  of  1857, 
taken  possession  of  Indian  administrators;  but  the 
truth  is  the  natives  of  India  are  not  so  wedded  to 
their  usages  that  they  are  not  ready  to  surrender 
them  for  any  tangible  advantage,  and  in  this  case 
the  even  justice  of  these  courts  was  evidently  re- 
garded as  quite  making  up  for  the  strangeness  of 
the  principles  upon  which  they  acted.  Another  con- 
clusion is  of  more  dh-ect  importance  to  the  jurist. 
Complete  and  consistent  in  appearance  as  is  the 
codified  law  of  India,  the  law  enunciated  by  Manu 
and  by  the  Brahminical  commentators  on  him,  it  em- 
braces a  far  smaller  portion  of  the  whole  law  of  India 
than  was  once  supposed,  and  penetrates  far  less  deeply 
among  the  people.  What  an  Oriental  is  really  attached 
to  is  his  local  custom,  but  that  was  felt  to  have  been 
renounced  by  persons  taking  refuge  at  a  distance  from 
home,  under  the  shelter  of  the  British  fortresses. 

The  chief  interest  of  these  Supreme  Courts  to  the 
student  of  comparative  jurisprudence  arises  from  the 
powerful  indirect  influence  exerted  by  them  on  the 
other  courts  which  I  mentioned,  and  with  which 
eight  years  ago  they  were  combined — the  Sudder 
Courts.  Nevertheless,  some  of  the  questions  which 
have  incidentally  come  before  the  Supreme  Courts, 
or  before  the  branch  of  the  High  Court  which  con- 
tinues their  jurisdiction,  have  thrown  a  good  deal  of 
light  on  the  mutual  play  of  Eastern   and   Westerii 


40  THE   WILL   OF   BENGAI*  lzct.  n. 

legal  thought  in  the  British  Indian  Empire.  The 
Judges  who  presided  over  the  most  important  of 
these  courts  very  early  recognised  the  existence  of 
testamentary  power  among  the  Hindoos.  It  seems 
that,  in  the  province  of  Lower  Bengal,  where  the 
village-system  had  been  greatly  broken  up,  the  head 
of  the  household  had  the  power  of  disposing  of  his 
patrimony  during  life.  Whether  he  could  dispose  of 
it  at  death,  and  thus  execute  a  disposition  in  any 
way  resembling  a  will,  has  always  been  a  much 
disputed  question — which,  however,  contemporary 
opinion  rather  inclines  towards  answering  in  the 
negative.  However  that  may  be,  the  power  of 
making  a  will  was  soon  firmly  established  among  the 
Hindoos  of  Lower  Bengal  by,  or  through  the  influence 
of,  the  English  lawyers  who  first  entered  the  country. 
For  a  long  time  these  wills,  never  very  frequently 
jised,  were  employed,  as  the  testaments  of  Roman 
sitizens  can  be  shown  to  have  been  employed,  merely 
'"o  supplement  the  arrangements  which,  without 
them,  would  have  been  made  by  the  law  of  intestate 
succession.  But  the  native  lawyers  who  practise  in 
Calcutta  live  in  an  atmosphere  strongly  charged  with 
English  law,  and  wills  drafted  by  them  or  at  their 
Instance,  and  exactly  resembling  the  will  of  a  great 
English  landed  proprietor,  were  coming  in  increasing 
jiurabers  before  the  Courts,  up  to  the  time  when  the 
i&w  of  testamentary  succession  was  finally  simplifip-d 


tBOT.  n.         WILLS   AND   COLLECTIVE   PROPERTY,  41 

and  settled  by  a  recent  enactment  of  tlie  Indian 
Legislature.  In  such  wills  the  testator  claimed  to 
arrange  a  line  of  succession  entirely  for  himself, 
not  only  providing  for  the  enjoyment  of  the  property 
by  his  descendants  in  such  order  as  he  pleased,  but 
even  excluding  them,  if  he  liked,  altogether  from  the 
succession;  and,  in  order  to  obtain  his  object,  he  also 
necessarily  claimed  to  have  the  benefit  of  a  number 
of  fictions  or  artificial  notions,  which  made  their  way 
into  English  law  from  feudal  and  even  from  scho- 
lastic sources.  The  most  interesting  of  these  Avills 
was  executed  by  a  Brahmin  of  high  lineage  who 
made  a  fortune  at  the  Calcutta  Bar,  and  he  aimed 
at  disinheriting  or  excluding  from  the  main  line  ot 
succession  a  son  who  had  embraced  Christianity. 
The  validity  and  effect  of  the  instrument  have  yet  to 
be  declared  by  the  Privy  Council;  ^  and  all  I  can  say 
without  impropriety  is  that,  in  those  parts  of  India 
in  which  the  collective  holding  of  property  has  not 
decayed  as  much  as  it  has  done  in  Lower  Bengal, 
the  liberty  of  testation  claimed  would  clearly  be 
foreign  to  the  indigenous  system  of  the  country. 
That  system  is  one  of  common  enjoyment  by  village- 
communities,  and,  inside  those  communities,  by 
families.     The  individual  here  has  almost  no  power 

^  They  have  since  been  decLared.  See  Ganendro  Mohun  Tagort 
V.  Rajah  Jotendro  Mohun  Tagore  and  others,  Law  Reports  (Indiac 
Appeals,  1874),  p.  Z9>1  .—{Note  to  Third  Edition.) 


43  A  MODERN   INDIAN   WILL.  lect   )1 

of  disposing  of  his  property;  even  if  he  be  chief  of 
his  household,  the  utmost  he  can  do,  as  a  rule,  is  to 
regulate  the  disposition  of  his  property  among  his 
children  within  certain  very  narrow  limits.  But  the 
power  of  free  testamentary  disposition  implies  the 
greatest  latitude  ever  given  in  the  history  of  the 
world  to  the  volition  or  caprice  of  the  individual. 
Independently,  however,  of  all  questions  of  substance, 
nothinof  could  be  more  remarkable  than  the  form  of 
the  will  which  I  spoke  of  as  having  fallen  under 
the  jurisdiction  of  the  tribunal  which  now  represents 
the  Supreme  Court  of  Calcutta.  Side  by  side  by 
recitals,  apparently  intended  to  conceal  the  breach 
in  the  line  of  descent,  by  affirming  that  the  tes- 
tator had,  while  hving,  made  suitable  provision  for 
the  disinherited  son,  were  clauses  settling  certain 
property  in  perpetuity  on  the  idols  of  the  family, 
and  possibly  meant  to  propitiate  them  for  the  irregu- 
larity in  the  performance  of  the  sacra  which  the  new 
devolution  of  the  inheritance  inevitably  entailed. 
The  testator  formally  stated  that  he  and  his  brothers 
had  failed  in  business,  that  all  the  property  they  had 
inherited  had  been  lost  in  the  disaster,  and  that  the 
fortune  of  which  he  was  disposing  was  acquired  by 
his  individual  exertions.  This  was  meant  to  take  the 
funds  with  which  the  will  dealt  out  of  the  Hindoo 
family  system  and  to  rebut  the  presumption  that  the 
gains   of  a  brother   belonged  to  the  common  stock 


LECT.  n.  THE    SUDDER   COUET.  4S 

of  the  joint  family.  But  these  provisions  referring 
to  Hindoo  joint  property  were  followed  by  others 
creating  joint  estates  on  the  English  model;  and  here 
the  testator  employed  legal  terms  only  capable  of  being 
thoroughly  understood  by  a  person  familiar  with  that 
extraordinary  technical  dialect  expressing  the  inci- 
dents of  joint-tenancy  which  the  fathers  of  English 
law  may  be  seriously  suspected  of  having  borrowed 
from  the  Divinity  Schools  of  Oxford  and  Cambridge. 
The  other  court  which  has  been  recently  com- 
bined with  the  court  I  have  been  describing,  re- 
tained to  the  last  its  native  name  of  Sudder  Court. 
It  underwent  some  changes  after  its  first  establish- 
ment, but  it  may  be  roughly  said  lo  date  from  the 
assumption  by  the  English  of  territorial  sovereignty. 
When  finally  organised,  it  became  the  highest  court  of 
appellate  jurisdiction  from  all  the  courts  established 
in  the  territories  dependent  on  the  seat  of  govern- 
ment, saving  always  the  Supreme  Court,  which  had 
exclusive  jurisdiction  within  the  Presidency  Town, 
or  (as  it  might  be  called)  the  English  metropolis. 
The  nature  of  the  local  tribunals  fi-om  which  an 
appeal  lay  to  the  Sudder  Court  is  a  study  by  itself; 
and  I  must  content  myself  with  stating  that  the 
Indian  judicial  system  at  present  resembles  not  the 
English  but  the  French  system;  that  a  number  of 
local  courts  are  spread  over  the  country,  from  each 
of  which   an   appeal   lies    to   some  higher  court,  of 


44  LNFLUENCE    OF   SUDDER    COURTS.  lect.  n 

which  the  decisions  are  again  appealable  to  the  court, 
whether  called  Sudder  or  High  Court,  which  stands 
at  the  apex.  The  Sudder  Courts  therefore  decided  in 
the  last  resort  questions  arising  originally  at  some  point 
or  other  of  a  vast  territory,  a  territory  in  some  cases 
containing  a  population  equal  to  that  of  the  largest 
European  States.  Except  the  Indian  Settlement 
and  Revenue  Courts,  which  I  began  this  Lecture 
by  describing,  no  tribunal  in  the  world  has  ever  had 
to  consider  a  greater  variety  of  law  and  usage. 

What  that  law  and  usage  was,  the  Sudder  Court 
used  to  ascertain  with  what  some  would  call  most 
conscientious  accuracy  and  others  the  most  technical 
narrowness.  The  judges  of  the  Court  were  not 
lawyers,  but  the  most  learned  civilians  in  the  service 
of  the  East  India  Company,  some  of  whom  have  left 
names  dear  to  Oriental  learning.  They  were  strongly 
influenced  by  the  Supreme  Court  which  sat  in  their 
neighbourhood;  but  it  is  curious  to  watch  the  dif 
ferent  effect  which  the  methods  of  English  law  had 
on  the  two  tribunals.  At  the  touch  of  the  Judge  of 
the  Supreme  Court,  who  had  been  trained  in  the 
English  school  of  special  pleading,  and  had  probably 
come  to  the  East  in  the  maturity  of  life,  the  rule  of 
native  law  dissolved  and,  with  or  without  his  inten- 
tion, was  to  a  great  extent  replaced  by  rules  having 
their  origin  in  English  law-books.  Under  the  hand 
of  the  Judges  of  the  Sudder  Courts,  who  had  lived 


r.ECT.  n.      INFLUENCE  OF  SUDDER  COUETS.  48 

since  their  boyhood  among  the  people  of  the  conntry_ 
the  native  rules  hardened,  and  contracted  a  rigidity 
which  they  never  had  in  real  native  practice.     The 
process  was  partly  owing  to  their  procedure,  which 
they  seem  to  have  borrowed  from  the  procedure  of  the 
English  Court  of  Chancery,  at  that  time  a  proverb  at  once 
of  complexity  and  technical  strictness.     It  has  been 
said  by  an  eminent  Indian  lawyer  that,  when  the  Judges 
of  the  Sudder  Courts  were  first  set  to  administer  native 
law,  they  appear  to  have  felt  as  if  they  had  got  into 
fairyland,  so  strange  and  grotesque  were  the  legal  prin- 
ciples on  which  they  were  called  to  act.     But  after 
n  while  they  became  accustomed  to  the  new  region, 
and  began  to  behave  themselves  as  if  all  were  real 
and  substantial.     As  a  matter  of  fact,  they  acted  as 
if  tlie}^  believed  LQ  it  more  than  did  its  native  inhabit 
ants.      Among  the  older  records  of  their  proceedings 
may  be  found  injunctions,  couched  in  the  technical 
language  of  English  Chancery  pleadings,  which  for- 
bid the  priests  of  a  particular  temple  to  injure  a  rival 
fane  by  painting  the  face  of  their  idol  red  instead  of 
5-ellow,  and  decrees  allowing  the  complaint  of  other 
priests  that  they  were  injured  in  property  and  repute 
because  their  neighbours  rang  a  bell  at  a  particular 
moment  of  their  services.     Much  Brahminical  ritual 
and  not  a  little  doctrine  became  the  subject  of  decision. 
The  Privy  Council  in  London  was  once  called  upoE 
to  decide  in  ultimate  appeal  on  the  claims  of  rival 


46  DEVELOPMENT   OF   HINDOO   LAW.  lpct.  n 

hierophants  to  have  their  palanquin  carried  cross-wise 
instead  of  length- wise  ;  and  it  is  said  that  on  another 
occasion  the  right  to  drive  elephants  through  the 
narrow  and  crowded  streets  of  one  of  the  most  sacred 
Indian  cities,  which  was  alleged  to  vest  in  a  certain  re- 
ligious order  as  being  in  possession  of  a  particular  idol, 
was  seriously  disputed  because  the  idol  was  cracked. 
There  is  in  truth  but  little  doubt  that,  until  educa- 
tion beofan  to  cause  the  natives  of  India  to  absorb 
Western  ideas  for  themselves,  the  influence  of  the 
Eno-lish  rather  retarded  than  hastened  the  mental 
development  of  the  race.  There  are  several  depart- 
ments of  thought  in  which  a  slow  modification  of 
primitive  notions  and  consequent  alteration  of  prac- 
tice may  be  seen  to  have  been  proceeding  before  we 
entered  the  country ;  but  the  signs  of  such  change  are 
exceptionally  clear  in  jurisprudence,  so  far,  that  is 
to  say,  as  Hindoo  jurisprudence  has  been  codified. 
Hindoo  law  is  theoretically  contained  in  Manu,  but 
it  is  practically  collected  from  the  writings  of  the 
jurists  who  have  commented  on  him  and  on  one 
another.  I  need  scarcely  say  that  the  mode  of  de- 
veloping law  which  consists  in  the  successive  com- 
ments of  jurisconsult  upon  jurisconsult,  has  played 
a  very  important  part  in  legal  history.  The  middle 
and  later  Roman  law  owes  to  it  much  more  than  to 
the  imperial  constitutions  ;  a  great  part  of  the  Canon 
law  has  been  created  by  it ;  and,  though  it  has  heer. 


LKCT.  n.         EFFECT   OF   JUDICIAL   COMMEXTAEIES.  47 

a  good  deal  checked  of  late  years  by  the  increased 
activity  of  formal  legislatures,  it  is  still  the  principal 
agency  in  extending  and  modifying  the  law  of  con- 
tinental countries.  It  is  worth  observing  that  it  is 
on  the  whole  a  liberalising  process.  Even  so  obsti- 
nate a  subject-matter  as  Hindoo  law,  was  visibly 
changed  by  it  for  the  better.  No  doubt  the  dominant 
object  of  each  successive  Hindoo  commentator  is  so 
to  construe  each  rule  of  civil  law  as  to  make  it 
appear  that  there  is  some  sacerdotal  reason  for  it; 
but,  subject  to  this  controlling  aim,  each  of  them 
leaves  in  the  law  after  he  has  explained  it,  a  stronger 
dose  of  common  sense  and  a  larger  element  of  equity 
and  reasonableness  than  he  found  in  it  as  it  came 
from  the  hands  of  his  predecessors. 

The  methods  of  interpretation  which  the  Sudder 
Courts  borrowed  from  the  Supreme  Courts  and  which 
the  Supreme  Courts  imported  from  Westminster  Hall, 
put  a  stop  to  any  natural  growth  and  improvement  of 
Hindoo  law.  As  students  of  historical  jurisprudence, 
we  may  be  grateful  to  them  for  it ;  but  I  am  clearly 
persuaded  that,  except  where  the  Indian  Legislature 
directly  interfered — and  of  late  it  has  interfered 
rather  freely, — the  English  dominion  of  India  at  first 
placed  the  natives  of  the  country  under  a  less  ad« 
vanced  regimen  of  civil  law  than  they  would  hnve 
had  if  they  had  been  left  to  themselves.  The  pneno- 
menon  seems  to  me  one  of  considerable  interest  to  the 


48  THE   BAR   AND    EXGLISII   LAW.  Lucr.  il 

Jurist.  Why  is  it  that  the  English  mode  of  develop- 
ing law  by  decided  cases  tends  less  to  improve  and 
liberalise  it  than  the  interpretation  of  written  law  by 
successive  commentators?  Of  the  fact  there  seems 
no  question.  Even  where  the  original  written  law  is 
historically  as  near  to  us  as  are  the  French  Codes,  its 
development  by  text -writers  is  on  the  whole  more 
rapid  than  that  of  English  law  by  decided  cases. 
The  absence  of  any  distinct  check  on  the  commen- 
tator and  the  natural  limitations  on  the  precision  of 
language  are  among  the  causes  of  the  liberty  he 
enjoys ;  so  also  is  the  power  which  he  exercises  of 
dealing  continuously  with  a  whole  branch  of  law ; 
and  so  too  are  the  facilities  for  taking  his  own  course 
afforded  him  by  inconsistencies  between  the  dicta  of 
his  predecessors — ^inconsistencies  which  are  so  glaring 
in  the  case  of  the  Hindoo  lawyers,  that  they  were 
long  ago  distributed  into  separate  schools  of  juridical 
doctrine.  The  reason  why  a  Bench  of  Judges,  ap- 
plying a  set  of  principles  and  distinctions  which  are 
still  to  a  great  extent  at  large,  should  be  as  slow  as 
English  experience  shows  them  to  be  in  extension 
and  innovation,  is  not  at  first  sight  apparent.  But 
doubtless  the  secret  lies  in  the  control  of  the  English 
Bench  by  professional  opinion — a  control  exerted  all 
the  more  stringently  when  the  questions  brought 
before  the  courts  are  merely  insulated  fragments  of 
particular  branches  of  law.      English  law  is,  in  fact, 


IBCT.  n.  MAHOMETAN   LAW.  48 

confided  to  the  custody  of  a  great  corporation,  of 
which  the  Bar,  not  the  Judges,  are  far  the  largest 
and  most  influential  part.  The  majority  of  the  cor- 
porators watch  over  every  single  change  in  the  body 
of  principle  deposited  with  them,  and  rebuke  and 
practically  disallow  it,  unless  the  departure  from 
precedent  is  so  slight  as  to  be  almost  imperceptible. 

Let  us  now  consider  what  was  the  law  which, 
under  the  name  of  native  custom,  the  courts  which 
I  have  been  describing  undertook  to  administer.  J 
shall  at  present  attend  exclusively  to  the  system 
which,  as  being  the  law  of  the  enormous  majority  of 
the  population,  has  a  claim  to  be  deemed  the  common- 
law  of  the  country — Hindoo  law.  If  I  were  techni- 
cally describing  the  jurisdiction,  I  should  have  to 
include  Mahometan  law,  and  the  very  interesting 
customs  of  certain  races  who  have  stood  apart  from 
the  main  currents  of  Oriental  conquest  and  civili- 
sation, and  are  neither  Mahometan  nor  Flindoo. 
Mahometan  law,  theoretically  founded  on  the  Koran, 
has  really  more  interest  for  the  jurist  than  has 
sometimes  been  supposed,  for  it  has  absorbed  a 
number  of  foreign  elements,  which  have  been  amal- 
gamated by  a  very  curious  process  with  the  mass  of 
semi-religious  rules  ;  but  the  consideration  of  this 
may  conveniently  be  postponed,  as  also  the  discussion 
of  the  outlying  bodies  of  non-Hindoo  usage  found  in 
various  parts  of  the  country. 

E 


50  THE   PUNDITS.  lbci.  n 

The  Hindoo  law,  then,  to  which  the  English  ic 
India  first  substantially  confined  their  attention,  con- 
sisted, first,  of  the  Institutes  of  Manu,  pretending  to 
a  divine  inspiration,  of  which  it  is  not  easy  to  define 
the  degree  and  quality,  and,  next,  of  the  catena  of 
commentators  belonging  to  the  juridical  school  ad- 
mitted to  prevail  in  the  province  for  which  each  par- 
ticular court  was  established.  The  Court  did  not  in 
early  times  pretend  to  ascertain  the  law  for  itself,  but 
took  the  opinion  of  certain  native  lawyers  officially 
attached  to  the  tribunal.  But  from  the  first  there 
were  some  specially  learned  Englishmen  on  the  bench 
who  preferred  to  go  for  themselves  to  the  fountains 
of  law,  and  the  practice  of  consulting  the  '  Pundits  ' 
was  gradually  discontinued.  These  Pundits  laboured 
long  under  the  suspicion,  to  a  great  degree  unmerited, 
of  having  trafficked  with  their  privileges,  and  having 
often,  from  corrupt  motives,  coined  the  law  which 
they  uttered  as  genuine.  But  the  learned  work  of 
Mr.  West  and  Professor  Biihler,  following  on  other 
enquiries,  has  gone  far  to  exonerate  them,  as  the 
greater  part  of  their  more  important  opinions  hove 
been  traced  to  their  source  in  recognised  authorities. 
That  they  were  never  corrupt  it  is  unfortunately 
never  safe  to  affirm  of  Orientals  of  their  time  ;  but 
their  opportunity  was  probably  taken  from  the 
vagueness  of  the  texts  which  they  had  to  interpret. 
There  are  in  fact  certain  dicta  of  Hindoo  authorita' 


LECT.  n.  CODIFIED    HINDOO    LAW.  61 

tive  commentators  upon  which  almost  any  conclusion 
could  be  based. 

The  codified  or  written  law  of  the  Hindoos,  then 
assumed  to  include  their  whole  law,  consisted  of  a 
large  body  of  law  regulating  the  relations  of  classes, 
especially  in  the  matter  of  intermarriage;  of  a  great 
body  of  family  law,  and  a  correspondingly  extensive 
law  of  succession;  and  of  a  vast  number  of  rules 
regulating  the  tenure  of  property  by  joint  families, 
the  effects  on  proprietary  right  of  the  division  of 
those  families,  and  the  power  of  holding  property 
independently  of  the  family.  There  was  some  law 
of  Contract  and  some  law  of  Crime;  but  large 
departments  of  law  were  scantily  represented,  or 
not  at  all,  and  there  was  in  particular  a  singular 
scarcity  of  rules  relating  specially  to  the  tenure  of 
land,  and  to  the  mutual  rights  of  the  various  classes 
engaged  in  its  cultivation.  This  last  peculiarity  was 
all  the  more  striking  because  the  real  wealth  of  the 
country  is,  and  always  has  been,  agricultural,  and 
the  religious  and  social  customs  of  the  people,  even 
as  recorded  in  the  codified  law,  savour  strongly  of 
agriculture  as  their  principal  occupation. 

It  would  seem  that  doubts  as  to  the  relation  of 
the  codified  or  -written  law  to  the  totality  of  native 
usage  were  entertained  at  a  very  early  time,  and 
collections  were  made  of  local  rules  which  applied  to 
the  very  points  discussed  by  the  Brahminical  jurists, 

E  2 


52  VAKIETIES    OF   NATIVE   USAGE.  LEcr.  li 

and  yet  disposed  of  them  in  a  very  different  manner. 
These  doubts  have  steadily  gained  strength.  I 
think  I  may  venture  to  lay  down  generally,  that  the 
more  exclusively  an  Anglo-Indian  functionary  has 
been  employed  in  '  revenue '  administration,  and  the 
further  removed  from  great  cities  has  been  the  scene 
of  his  labours,  the  greater  is  his  hesitation  in  admit- 
ting that  the  law  assumed  to  begin  with  Manu  is,  or 
ever  has  been,  of  universal  application.  I  have  also 
some  reason  to  believe  that  the  Judges  of  the  newest 
of  the  High  Courts,  that  established  a  few  years 
ago  for  the  provinces  of  the  North-West  in  which 
primitive  usage  was  from  the  first  most  carefully 
observed  and  most  respected,  are  of  opinion  that  they 
would  do  great  injustice  if  they  strictly  and  uniformly 
administered  the  formal  written  law.  The  conclusion 
arrived  at  by  the  persons  who  seem  to  me  of  highest 
authority  is,  firsts  that  the  codified  law — Manu  and 
his  glossators — embraced  originally  a  much  smaller 
body  of  usage  than  had  been  imagined,  and,  next, 
that  the  customary  rules,  reduced  to  writing,  have 
been  very  greatly  altered  by  Brahminical  expositors, 
constantly  in  spirit,  sometimes  in  tenor.  Indian  law 
may  be  in  fact  afifirmed  to  consist  of  a  very  great 
number  of  local  bodies  of  usage,  and  of  one  set  oi 
customs,  reduced  to  writing,  pretending  to  a  diviner 
authority  than  the  rest,  exercising  consequently  ? 
great  influence  over  them,  and  tending,  if  not  checked 


LEOT.  u.  THE   WRITTEN   LAW.  6a 

to  absorb  them.  You  must  not  understand  that  these 
bodies  of  custom  are  fundamentally  distinct.  They 
are  all  marked  by  the  same  general  features,  but 
there  are  considerable  differences  of  detail ;  and  the 
interest  of  these  differences  to  the  historical  jurist  is 
very  great,  for  it  is  by  their  help  that  he  is  able 
chieHy  to  connect  the  customs  of  India  with  what 
appear  to  have  been  some  of  the  oldest  customs  of 
Europe  and  the  West. 

As  you  would  expect,  the  written  law,  having 
been  exclusively  set  forth  and  explained  by  Brahmins, 
is  principally  distinguished  from  analogous  local 
usages  by  additions  and  omissions  for  which  sacer- 
dotal reasons  may  be  assigned.  For  instance,  I  have 
been  assured  from  many  quarters  that  one  sweeping 
theory,  which  dominates  the  whole  codified  law,  can 
barely  be  traced  in  the  unwritten  customs.  It  sounds 
like  a  jest  to  say  that,  according  to  the  principles  of 
Hindoo  law,  property  is  regarded  as  the  means  of 
paying  a  man's  funeral  expenses,  but  this  is  not  so 
very  untrue  of  the  written  law,  concerning  which  the 
most  dignified  of  the  Indian  Courts  has  recently  laid 
down,  after  an  elaborate  examination  of  all  the 
authorities,  that  '  the  right  of  inheritance,  according 
to  Hindoo  law,  is  wholly  regulated  with  reference  to 
the  spiritual  benefits  to  be  conferred  on  the  deceased 
proprietor.'  There  are  also  some  remarkable  dif- 
ferences between  the  written  and  unwritten  law  ir 


M  HINDOO   widow's   ESTATE.  UBCT.  il 

their  construction  of  the  rights  of  widows.  That 
the  oppressive  disabilities  of  widows  found  in  mo- 
dern Hindoo  law,  and  especially  the  prohibition  of 
re-marriage,  have  no  authority  from  ancient  records, 
has  often  been  noticed.  The  re-marriage  of  widows 
is  not  a  subject  on  which  unwritten  usage  can  be  ex- 
pected to  throw  much  light,  for  the  Brahminical  law 
has  generally  prevailed  in  respect  of  personal  famil}' 
relations,  but  the  unwritten  law  of  property,  which 
largely  differs  from  the  written  law,  undoubtedly 
gives  colour  to  the  notion  that  the  extraordinary 
harshness  of  the  Hindoo  text-writer  to  widows  is  of 
sacerdotal  origin.  A  custom,  of  which  there  are 
many  traces  in  the  ancient  law  of  the  Aryan  races, 
but  which  is  not  by  any  means  confined  to  them, 
gives  under  various  conditions  the  government  of 
the  family,  and,  as  a  consequence  of  government, 
the  control  of  its  property,  to  the  wife  after  the 
death  of  her  husband,  sometimes  during  the  minority 
of  her  male  children,  sometimes  for  her  own  life 
upon  failure  of  direct  male  descendants,  sometimes 
even,  in  this  last  contingency,  absolutely.  But  the 
same  feeling,  gradually  increasing  in  strength,  which 
led  them  in  their  priestly  capacity  to  preach  to  the 
widow  the  duty  of  self-immolation  at  her  husband's 
funeral-pyre,  appears  to  have  made  her  proprietary 
rights  more  and  more  distasteful  to  the  Brahminical 
text- writers ;  and  the  Hindoo  junsts  of  all  schools, 


LECT.  IT.         PRESERVATION   OF   CUSTOMARY   LAW.  Sfl 

though  of  some  more  than  others,  have  striven 
hard  to  maintain  the  principle  that  the  life  of  the 
widow  is  properly  a  life  of  self-denial  and  humilia- 
tion. Partly  by  calling  in  the  distinction  between 
separate  and  undivided  property,  and  partly  by  help 
of  the  distinction  between  movable  and  immovable 
property,  they  have  greatly  cut  down  the  widow's 
rights,  not  only  reducing  them  for  the  most  part 
(where  they  arise)  to  a  life-interest,  but  abridging  this 
interest  by  a  variety  of  restrictions  to  little  more 
than  a  trusteeship.  Here  again  I  am  assured  that 
any  practice  corresponding  to  this  doctrine  is  very 
rarely  found  in  the  unwritten  usage,  under  which 
not  only  does  the  widow  tend  to  become  a  true  pro- 
prietress for  life,  but  approaches  here  and  there  to 
the  condition  of  an  absolute  owner. 

The  preservation,  during  a  number  of  centuries 
which  it  would  be  vain  to  calculate,  of  this  great  body 
of  unwritten  custom,  differing  locally  in  detail,  but 
connected  by  common  general  features,  is  a  pheno- 
menon which  the  jurist  must  not  pass  over.  Before 
I  say  anything  of  the  conclusions  at  which  it  points, 
let  me  tell  you  what  is  known  of  the  agencies  by 
which  it  has  been  preserved.  The  question  has  by 
no  means  been  fully  investigated,  but  many  of  those 
best  entitled  to  have  an  opinion  upon  it  have  in- 
formed me  that  one  great  instrumentality  is  the 
perpetual  discussion  of  customary  law  by  the  peopls 


56  CASTE  IN  INDIA.  L*cr.  n 

themselves.  We  are,  perhaps,  too  apt  to  forget  that 
in  all  stages  of  social  developraent  men  are  compara- 
tively intelligent  beings,  who  must  have  some  sub- 
jects of  mental  interest.  The  natives  of  India,  for 
poor  and  ignorant  men,  have  more  than  might  be 
expected  of  intellectual  quickness,  and  the  necessities 
of  the  climate  and  the  simplicity  of  their  habits  make 
the  calls  on  their  time  less,  and  their  leisure  greater, 
than  would  be  supposed  by  persons  acquainted  only 
with  the  labourers  of  colder  climates.  Those  who 
know  most  of  them  assert  that  their  religious  belief 
is  kept  alive  not  by  direct  teaching,  but  by  the  con- 
stant recitation  in  the  vernacular  of  parts  of  their 
sacred  poems,  and  that  the  rest  of  their  thought  and 
conversation  is  given  to  their  usages.  But  this,  doubt- 
less, is  not  the  whole  explanation.     I  have  been  asked 

and  I  acknowledge  the  force  of  the  question — how 

traditions  of  immemorial  custom  could  be  preserved 
by  the  agricultural  labourers  of  England,  even  if 
they  had  more  leisure  than  they  have?  But  the 
answer  is  that  the  social  constitution  of  India  is  of  the 
extreme  ancient,  that  of  England  of  the  extreme 
modern  type.  I  am  aware  that  the  popular  im- 
pression here  is  that  Indian  society  is  divided,  so  to 
speak,  into  a  number  of  horizontal  strata,  each  re- 
presenting a  caste.  This  is  an  entire  mistake.  It  is 
extremely  doubtful  whether  the  Brahminical  theory 
of  caste  upon  caste  was  ever  true  except  of  the  two 


tBCT.  n.  TRADITION.  65 

highest  castes;  and  it  is  even  likely  that  more  impor- 
tance  has  been  attached  to  it  in  modern  than  ever 
was  in  ancient  times.  The  real  India  contains  one 
priestly  caste,  which  in  a  certain,  though  a  very 
limited,  sense  is  the  highest  of  all,  and  there  are, 
besides,  some  princely  houses  and  a  certain  number 
of  tribes,  village-communities,  and  guilds,  which  still 
in  our  day  advance  a  claim,  considered  by  many 
good  authorities  extremely  doubtful,  to  belong  to 
the  second  or  third  of  the  castes  recognised  by  the 
Brahminical  writers.  But  otherwise,  caste  is  merely 
a  name  for  trade  or  occupation,  and  the  sole  tangible 
effect  of  the  Brahminical  theory  is  that  it  creates  a 
rehgious  sanction  for  what  is  really  a  primitive  and 
natural  distribution  of  classes.  The  true  view  of 
India  is  that,  as  a  whole,  it  is  di^dded  into  a  vast 
number  of  independent,  self-acting,  organised  social 
groups — trading,  manufacturing,  cultivating.  The 
English  agricultural  labourers  of  whom  we  spoke, 
are  a  too  large,  too  indeterminate  class,  of  which 
the  units  are  too  loosely  connected,  and  have  too 
few  interests  in  common,  to  have  any  great  power 
of  retaining  tradition.  But  the  smaller  organic 
groups  of  Indian  society  are  very  differently  situated. 
They  are  constantly  dwelling  on  traditions  of  a  cer- 
tain sort,  they  are  so  constituted  that  one  man's 
interests  and  impressions  correct  those  of  another 
and  some  of  them  have  in  theu'  council  of  elders  a 


68  DIFFERENT   FORMS    OF   TRADITION.  :j:ct.  a 

permanent  machinery  for  declaring  traditional  usage, 
and  solving  doubtful  points.  Tradition,  I  may  ob- 
serve, has  been  the  subject  of  so  much  bitter  polemi- 
cal controversy  that  a  whole  group  of  most  in- 
teresting and  important  questions  connected  with  it 
have  never  been  approached  in  the  proper  spirit. 
Under  what  conditions  it  is  accurate,  and  in  respect 
of  what  class  of  matters  is  accurate,  are  points  with 
which  the  historical  jurist  is  intimately  concerned. 
I  do  not  pretend  to  sum  up  the  whole  of  the  lessons 
which  observation  of  Indian  society  teaches  on  the 
subject,  but  it  is  assuredly  the  belief  of  men  who 
were  at  once  conscientious  observers  and  had  no 
antecedent  theory  to  sway  them,  that  naturally 
organised  groups  of  men  are  obstinate  conservators 
of  traditional  law,  but  that  the  accuracy  of  the 
tradition  diminishes  as  the  group  becomes  larger  and 
wider. 

The  knowledge  that  this  great  body  of  traditional 
law  existed,  and  that  its  varieties  were  just  suffi- 
ciently great  for  the  traditions  of  one  group  to  throw 
light  on  those  of  another,  will  hereafter  deeply  affect 
the  British  admmistration  of  India.  But  I  shall  have 
to  point  out  to  you  that  there  are  signs  of  its  being 
somewhat  abused.  There  has  been  a  tendency  to 
leave  out  of  sight  the  distinctions  which  render 
different  kinds  of  tradition  of  very  different  value; 
the  distinction,  for  example,  between  a  mere  tradition 


LECT.  IT.      POPULAR    IGNORANCE   OF   LAW   IX   ENGLAND.       5^ 

as  to  the  rule  to  be  followed  in  a  given  case  and  a 
tradition  which  has  caused  a  rule  to  be  followed ;  the 
distinction,  as  it  has  been  put,  between  customs 
which  do  and  customs  which  do  not  correspond  to 
practices.  If  a  tradition  is  not  kept  steady  by 
corresponding  practice,  it  may  be  warped  by  all 
sorts  of  extraneous  influences.  The  great  value  now 
justly  attached  in  India  to  traditional  law  has  even 
brought  about  the  absurdity  of  asking  it  to  solve 
some  of  the  most  complicated  problems  of  modern 
society,  problems  produced  by  the  collapse  of  the 
very  social  system  which  is  assumed  to  have  in  itself 
their  secret. 

I  have  been  conducted  by  this  discussion  to  a 
topic  on  which  a  few  words  may  not  be  thrown 
away.  Not  only  in  connection  with  the  preservation 
of  customary  law,  but  as  a  means  of  clearing  the 
mind  before  addressing  oneself  to  a  considerable 
number  of  juridical  questions,  I  must  ask  you  to 
believe  that  the  very  small  place  filled  by  our  own 
English  law  in  our  thoughts  and  conversation  is  a 
phenomenon  absolutely  confined  to  these  islands.  A 
very  simple  experiment,  a  very  few  questions  asked 
after  crossing  the  Channel,  will  convince  you  that 
Frenchmen,  Swiss,  and  Germans  of  a  very  humble 
order  have  a  fair  practical  knowledge  of  the  law 
which  regulates  their  everyday  life.  We  in  Great 
Britain  and    Ireland  are  altogether  singular  in  out 


60  THE   EXPERTS   A^^D   ENGLISH   LAW  LEcr.  ii 

tacit  conviction  that  law  belongs  as  much  to  the 
class  of  exclusively  professional  subjects  .-.s  the 
practice  of  anatomy.  Ours  is,  in  fact,  under  limita- 
tions which  it  is  not  necessary  now  to  specify,  a 
body  of  traditional  customary  law;  no  law  is  better 
known  by  those  who  live  under  it  in  a  certain  stage 
of  social  progress,  none  is  known  so  little  by  those 
who  are  in  arother  stage.  As  social  activity  multi- 
plies the  questions  requiring  judicial  solution,  the 
method  of  solving  them  which  a  system  of  customary 
law  is  forced  to  follow  is  of  such  a  nature  as  to  add 
enormously  to  its  bulk.  Such  a  system  in  the  end 
beats  all  but  the  experts  ;  and  we,  accordingly,  have 
turned  our  laws  over  to  experts,  to  attorneys  and 
solicitors,  to  barristers  above  them,  and  to  judges  in 
the  last  resort.  There  is  but  one  remedy  for  this — 
the  reduction  of  the  law  to  continuous  writing  and 
its  inclusion  within  aptly-framed  general  propositions. 
The  facilitation  of  this  process  is  the  practical  end  of 
scientific  jurisprudence. 

As  in  the  Lectures  which  follow  I  shall  not  often 
appeal  to  what  are  ordinarily  recognised  as  the  foun- 
tains of  Hindoo  law,  it  was  necessary  for  me  to 
explain  that  the  materials  for  the  conclusions  which 
I  shall  state — unwritten  usages,  probably  older  and 
purer  than  the  Brahminical  written  law — are  now 
having  their  authority  acknowledged  even  by  thf 
Indian  Courts,  once  the  jealous  conservators  of  the 


LECT.  II.      IM)IAN  Am)   TEUTONIC   VILLAGE   SYSTEjIS.  6'J 

integrity  of  the  sacerdotal  system.  These  ma- 
terials are  partly  to  be  found  in  that  large  and 
miscellaneous  official  literature  which  I  described  as 
having  grown  out  of  the  labours  of  the  functionaries 
who  adjust  the  share  of  the  profits  of  cultivation 
claimed  by  the  British  Government  as  supreme  land- 
lord; but  much  which  is  essential  to  a  clear  under- 
standing can  only  be  at  present  collected  from  the 
oral  conversation  of  experienced  observers  who  have 
passed  their  maturity  in  administrative  office.  The 
inferences  suggested  by  the  written  and  oral  testi- 
mony would  perhaps  have  had  interest  for  few  except 
those  who  had  passed,  or  intended  to  pass,  a  life  in 
Indian  office  ;  but  their  unexpected  and  (if  I  may 
speak  of  the  impression  on  myself)  their  most  start- 
ling coincidence  with  the  writers  who  have  recently 
applied  themselves  to  the  study  of  early  Teutonic 
agricultural  customs,  gives  them  a  wholly  new  value 
and  importance.  It  would  seem  that  light  is  pouring 
from  many  quarters  at  once  on  some  of  the  darkest 
passages  in  the  history  of  law  and  of  society.  To 
those  who  knew  how  strong  a  presumption  already 
existed  that  individual  property  came  into  existence 
after  a  slow  process  of  change,  by  which  it  disengaged 
itself  from  collective  holdings  by  families  or  larger 
assemblages,  the  evidence  of  a  primitive  village  system 
in  the  Teutonic  and  Scandina\dan  countries  had  very 
great  interest;  this  interest  largely  increased  when 


02  INDIA^'   A^^)    teutonic   village   systems.      LiiOT.  a 

England,  long  supposed  to  have  had  since  the 
Norman  Conquest  an  exceptional  system  of  property 
in  land,  was  shown  to  exhibit  almost  as  many  traces 
of  joint-ownership  and  common  cultivation  as  the 
countries  of  the  North  of  the  Continent;  but  our 
interest  culminates,  I  think,  when  we  find  that  these 
primitive  European  tenures  and  this  primitive  Euro- 
pean tillage  constitute  the  actual  working  system  of 
the  Indian-village  communities,  and  that  they  deter- 
mine the  whole  course  of  Anglo-Indian  administration. 


LECTURE    IlL 
THE  WESTERN  TILLAGE-COMMUNITY. 


CONTENTS. 

Antiquity  of  Indian  Customary  Law — Traditional  Law — Analysis 
of  a  Law — Indian  Conceptions  o£  Law — English  Lifluence  on 
Legal  Conceptions — Unwilling  Assumption  of  Sovereignty — In- 
fluence of  Courts  of  Justice — Change  in  Nature  of  Usage — 
Growth  of  Conception  of  Right — Influence  of  English  Law — 
Connection  of  Eastern  and  Western  Custom — Von  Maurer — 
The  Teutonic  Village-Community — The  Arable  Mark — EngHsh 
Theories  of  Land-Law — The  Arable  Mark  in  England — Shifting 
Severalties — The  Common  Fields — Their  Great  Extent — Extract 
from  Marshall — Scott  on  Udal  Tenures — Commonty  of  Lauder^ 
Peculiarities  of  Scottish  Example — Vestiges  of  the  Mark. 


LECTURE  ni. 

THE   WESTEEN   VILLAGE-COMMUNITY. 

I  HAVE  AFFIRMED  the  fact  to  be  established  as  well  as 
any  fact  of  the  kind  can  be,  that  there  exist  in  India 
several — and  it  may  even  be  said,  many — considerable 
bodies  of  customary  law,  sufficiently  alike  to  raise  a 
strong  presumption  that  they  either  had  a  common 
origiQ  or  sprang  from  a  common  social  necessity,  but 
sufficiently  unlike  to  show  that  each  of  them  must 
have  followed  its  own  course  of  development.  There 
exists  a  series  of  writings  which  pretend  to  be  a 
statement  of  these  customs,  but  this  series  proves  to 
include  a  part  only  of  the  whole  body  of  usage  ;  it 
probably  embodied  from  the  first  only  one  set  of  cus- 
tomary rules,  and  its  form  shows  clearly  that  it  must 
have  had  a  separate  and  very  distinct  history  of  its 
own.  Few  assertions  respecting  lapse  of  time  and 
the  past  can  safely  be  made  of  anything  Indian  ;  but 
there  can  be  no  reasonable  doubt  that  all  this  cus- 
tomary law  is  of  very  great  antiquity.  I  need  scarcely 
point   out   to  you  that  such  facts  as  these  have   a 


fiG  TRADITIONAL   LAW.  lbct.  hi 

bearing  on  more  than  one  historical  problem.  If,  for 
example,  I  am  asked  whether  it  is  possible  that,  when 
the  Roman  Empire  had  been  overrun  by  the  Northern 
races,  the  Roman  law  could  be  preserved  by  mere 
oral  transmission  in  countries  in  which  no  breviaries 
of  that  law  were  published  by  the  invading  chiefs  to 
keep  it  alive,  I  can  only  say  that  observation  of 
India  shows  such  preservation  to  be  abstractedly  pos- 
sible ;  and  shows  it  moreover  to  be  possible  in  the  face 
of  written  records  of  a  legal  or  legislative  character 
which  contain  no  reference  to  the  unwritten  and 
orally  transmitted  rules.  But  I  should  at  the  same 
time  have  to  point  out  that  nothing  in  India  tends  to 
prove  that  law  may  be  orally  handed  down  from  one 
generation  to  another  of  men  who  form  an  indeter- 
minate class,  or  that  it  can  be  preserved  by  any 
agency  than  that  of  organised,  self-acting,  social 
groups.  I  should  further  have  to  observe  that,  unless 
there  have  been  habits  and  practices  corresponding  to 
the  traditional  rules,  those  rules  may  be  suspected 
of  having  undergone  considerable  modification  or 
depravation. 

I  pass,  however,  to  matters  which  have  a  closer 
interest  for  the  jurist,  and  which  are,  therefore,  dis- 
cussed with  more  propriety  in  this  department  of 
study.  So  long  as  that  remarkable  analysis  of  legai 
conceptions  effected  by  Bentham  and  Austin  is  not 
very  widely  known  in  this  country  (and  I  see  no  signs 


z-ECi.  in.  THE   ANALYSIS   OP   A   LXW.  O't 

of  its  being  known  on  the  Continent  at  all),  it  is 
perhaps  premature  to  complain  of  certain  errors,  into 
which  it  is  apt  to  lead  us  on  points  of  historical  juris- 
prudence. If,  then,  I  employ  the  Indian  legal  pheno- 
mena to  illustrate  these  errors,  I  must  preface  what 
I  have  to  say  with  the  broad  assertion  that  nobody 
who  has  not  mastered  the  elementary  part  of  that 
analysis  can  hope  to  have  clear  ideas  either  of  law  or 
of  jurisprudence.  Some  of  you  may  be  in  a  position  to 
call  to  mind  the  mode  in  which  these  English  jurists 
decompose  the  conception  of  a  law,  and  the  nature 
and  order  of  the  derivative  conceptions  which  they 
assert  to  be  associated  with  the  general  conception. 
A  law,  they  say,  is  a  command  of  a  particular  kind. 
It  is  addressed  by  political  superiors  or  sovereigns  to 
political  inferiors  or  subjects  ;  it  imposes  on  those 
subjects  an  obligation  or  duty  and  threatens  a  penalty 
(or  sanction)  in  the  event  of  disobedience.  The 
power  vested  in  particular  members  of  the  community 
of  drawing  down  the  sanction  on  neglects  or  breaches 
of  the  duty  is  called  a  Right.  Now,  without  the  most 
violent  forcing  of  language,  it  is  impossible  to  apply 
these  terms,  command,  sovereign,  obligation,  sanction, 
right,  to  the  customary  law  under  which  the  Indian 
village-communities  have  lived  for  centuries,  practi- 
cally knowing  no  other  law  civilly  obligatory,  it 
v/ould  be  altogether  inappropriate  to  speak  of  a  poli- 
tical superior  commanding  a  particular  course  of  action 

V  2 


68  INDIAN   CONCEPTIONS    OF   A    LAW.  lecx.  m. 

to  the  villagers.  The  council  of  village  elders  does  not 
command  anything,  it  merely  declares  what  has 
always  been.  Nor  does  it  generally  declare  that 
which  it  believes  some  higher  power  to  have  com- 
manded; those  most  entitled  to  speak  on  the  subject 
deny  that  the  natives  of  India  necessarily  require 
divine  or  political  authority  as  the  basis  of  their 
usages ;  their  antiquity  is  by  itself  assumed  to  be  a 
sufficient  reason  for  obeying  them.  Nor,  in  the 
sense  of  the  analytical  jurists,  is  there  right  or  duty  in 
an  Indian  village-community  ;  a  person  aggrieved 
complains  not  of  an  individual  wrong  but  of  the  dis- 
turbance of  the  order  of  the  entire  little  society.  More 
than  all,  customary  law  is  not  enforced  by  a  sanction. 
In  the  almost  inconceivable  case  of  disobedience  to 
the  award  of  the  village  council,  the  sole  punishment, 
or  the  sole  certain  punishment,  would  appear  to  be 
universal  disapprobation.  And  hence,  under  the 
system  of  Bentham  and  Austin,  the  customary  law  of 
India  would  have  to  be  called  morality — an  inversion 
of  language  which  scarcely  requu*es  to  be  formally 
protested  against. 

I  shall  have  hereafter  to  tell  you  that  in  certain  of 
the  Indian  communities  there  are  signs  of  one  family 
enjoying  an  hereditary  pre-eminence  over  the  others, 
so  that  its  head  approaches  in  some  degree  to  tbe 
position  of  chief  of  a  clan,  and  I  shall  have  to  explain 
thut  this  inherited   authority  is  sometimes  partiall) 


LECT.  m.     EIS^GLISH    INFLUENCE    ON   LEGAL   CONCEPTIONS.    63 

and  sometimes  exclusively  judicial,  so  that  the  chief  be- 
comes a  sort  of  hereditary  judge.  Of  communities  thus 
circumstanced  the  juristical  analysis  to  which  I  have 
been  referring  is  more  nearly  true.  So  too  the  codi- 
fied Brahminical  law  could  be  much  more  easily 
resolved  into  tlie  legal  conceptions  determined  by 
Bentham  and  Austin.  It  assumes  that  there  is  a 
king  to  enforce  the  rules  which  it  sets  forth,  and  pro- 
vides a  procedure  for  him  and  his  subordinates,  and 
penalties  for  them  to  inflict ;  and  moreover  it  becomes 
true  law  in  the  juristical  sense,  througli  another 
peculiarity  which  distinguishes  it.  Every  oifence 
against  this  written  law  is  also  a  sin;  to  injure  a 
man's  property  is  for  instance  to  diminish  the  power 
of  his  sons  to  provide  properly  for  expiatory  funeral 
rites,  and  such  an  injury  is  naturally  supposed  to 
entail  divine  punishment  on  its  perpetrator. 

We  may,  however,  confine  our  attention  to  the 
unwritten  usages  declared  from  time  to  time  by  the 
council  of  village  elders.  The  fact  which  has 
greatest  interest  for  the  jurist  is  one  which  has  been 
established  by  the  British  dominion  of  India,  and 
which  could  not  probably  have  been  established 
without  it.  It  may  be  described  in  this  way. 
Whenever  you  introduce  any  one  of  the  legal  concep- 
tions determined  by  the  analysis  of  Bentham  and 
Austin,  you  introduce  all  the  others  by  a  process 
which   is   apparently   inevitable.      No   better   proof 


rO       UNWILLING   ASSUMPTION   OF   SOVEREIGNTY,        lect.  in 

coald  be  given  that,  though  it  be  improper  to  employ 
these  terms  sovereign,  subject^  command^  obligation^ 
right,  sanction,  of  law  in  certain  stages  of  human 
thought,  they  nevertheless  correspond  to  a  stage  to 
which  law  is  steadily  tending  and  which  it  is  sure 
ultimately  to  reach. 

Nothino-  is  more  certain  than  that  the  revolution 
of  legal  ideas  which  the  English  have  effected  in 
India  was  not  effected  by  them  intentionally.  The 
relation  of  sovereign  to  subject,  for  instance,  which 
is  essential  to  the  modern  juridical  conception  of  law, 
was  not  only  not  established  by  them,  but  was  for 
long  sedulously  evaded.  When  they  first  committed 
themselves  to  a  course  of  territorial  aggrandisement, 
they  adopted  a  number  of  curious  fictions  rather 
than  admit  that  they  stood  to  the  people  of  India  as 
political  superior  to  political  inferior.  Nor  had  they 
the  slightest  design  of  altering  the  customary  law  of 
the  country.  They  have  been  accused  of  interfer- 
ing with  native  usages,  but  when  the  interference 
(which  has  been  on  the  whole  very  small)  has  taken 
place,  it  has  either  arisen  from  ignorance  of  the  exist- 
ence of  custom  or  has  been  forced  on  them,  in  very 
recent  times  and  in  the  shape  of  express  legislation, 
by  necessities  which  I  may  be  led  hereafter  to 
Bxplain.^     The  English  never  therefore  intended  that 

*  I  have  endeavoured  to  redeem  this  promise  in  part  by  printing 
in  an  Appendix  a  Minute  recorded  in  India  on  the  subject  of  tha 
over- legislation  not  iufreqiiently  attributed  to  the  British  Govern- 
ment. 


LECT.  in.         INFLUENCE    OF   COUETS    OF   JUSTICE.  71 

the  laws  of  the  country  should  rest  on  their  com- 
mands, or  that  these  laws  should  shift  in  any  way 
their  ancient  basis  of  immemorial  usage.  One  change 
only  they  made,  without  much  idea  of  its  importance, 
and  thinking  it  probably  the  very  minimum  of  conces- 
sion to  the  exigencies  of  civilised  government.  They 
established  Courts  of  Justice  in  every  administrative 
district.  Here  I  may  observe  that,  though  the 
Brahminical  written  law  assumes  the  existence  of 
king  and  judge,  yet  at  the  present  moment  in  some 
of  the  best  governed  semi-independent  native  States 
there  are  no  institutions  corresponding  to  our  Courts 
of  Justice.  Disputes  of  a  civil  nature  are  adjusted 
by  the  elders  of  each  village-community,  or  occasion- 
ally, when  they  relate  to  land,  by  the  functionaries 
charged  with  the  collection  of  the  prince's  revenue. 
Such  criminal  jurisdiction  as  is  found  consists  in  the 
interposition  of  the  military  power  to  punish  breaches 
of  the  peace  of  more  than  ordinary  gravity.  What 
must  be  called  criminal  law  is  administered  through 
the  arm  of  the  soldier. 

In  a  former  Lecture  I  spoke  of  the  stiffness  given 
to  native  custom  through  the  influence  of  English 
law  and  English  lawyers  on  the  highest  courts  of 
appeal.  The  changes  which  I  am  about  to  describe 
arose  from  the  mere  establishment  of  local  courts  of 
lowest  jurisdiction  ;  and  while  they  have  effected  a 
revolution,   it   is   a   revolution    which    in    the   first 


72  CHANGE   IN   NATUKE   OF  USAGE,  lect   m 

instance  was  conservative  of  the  rigidity  of  native 
usage.  The  customs  at  once  altered  their  character. 
They  are  generally  collected  from  the  testimony  of 
the  village  elders  ;  but  when  these  elders  are  once 
called  upon  to  give  their  evidence,  they  necessarily 
lose  their  old  position.  They  are  no  longer  a  half- 
judicial,  half-legislative  council.  That  which  they 
have  affirmed  to  be  the  custom  is  henceforward  to 
be  sought  from  the  decisions  of  the  Courts  of  Justice, 
or  from  official  documents  which  those  courts  receive 
as  evidence ;  such,  for  example,  as  the  document  which, 
under  the  name  of  the  Record  of  Rights,  I  described 
to  you  as  a  detailed  statement  of  all  rights  in  land 
drawn  up  periodically  by  the  functionaries  employed 
in  settling  the  claim  of  the  Government  to  its  share 
of  the  rental.  Usage,  once  recorded  upon  evidence 
given,  immediately  becomes  written  and  fixed  law. 
Nor  is  it  any  longer  obeyed  as  usage.  It  is  hence- 
forth obeyed  as  the  law  administered  by  a  British 
Court,  and  has  thus  really  become  a  command  of  the 
sovereign.  The  next  thing  is  that  the  vague  sanc- 
tions of  customary  law  disappear.  The  local  courts 
have  of  course  power  to  order  and  guide  the  execu- 
tion of  their  decrees,  and  thus  we  have  at  once  the 
sanction  or  penalty  following  disobedience  of  the 
command.  And,  with  the  command  and  with  the 
sanction,  come  the  conceptions  of  legal  right  and  duty. 
I  am  not  speaking  of  the  logical  but  of  the  practica? 


LECT.  in.        GROWTH   OF   CONCEPTION   OF   EIGHT.  73 

consequence.  If  I  had  to  state  what  for  the  moment 
is  the  greatest  change  which  has  come  over  the 
people  of  India  and  the  change  which  has  £.dded  most 
seriously  to  the  difficulty  of  governing  them,  I  should 
say  it  was  the  growth  on  all  sides  of  the  sense  of 
individual  legal  right ;  of  a  right  not  vested  in  the 
total  group  but  in  the  particular  member  of  it 
aggrieved,  who  has  become  conscious  that  he  may 
call  in  the  arm  of  the  State  to  force  his  neighbours  to 
obey  the  ascertained  rule.  The  spread  of  this  sense 
of  individual  right  would  be  an  unqualified  advantage 
if  it  drew  with  it  a  corresponding  improvement  in 
moral  judgment.  There  would  be  little  evil  in  the 
British  Government  giving  to  native  custom  a  con- 
straining force  which  it  never  had  in  purely  native 
society,  if  popular  opinion  could  be  brought  to  approve 
of  the  gradual  amelioration  of  that  custom.  Unfor- 
tunately for  us,  we  have  created  the  sense  of  legal 
right  before  we  have  created  a  proportionate  power 
of  distinguishing  good  from  evil  in  the  law  upon 
which  the  legal  right  depends. 

You  will  see  then  that  the  English  government 
of  India  consciously  introduced  into  India  only  one 
of  the  conceptions  discriminated  by  the  juridical 
analysis  of  a  law.  This  was  the  sanction  or  penalty ; 
in  establishing  Courts  of  Justice  they  of  course  con- 
templated the  compulsory  execution  of  decrees.  But 
in  introducing  one  of  the  terms  of  the  series  you  wiU 


74  INFLUENCE   OF   ENGLISH   LAW.  lect.  m 

observe  they  introduced  all  the  others — the  political 
superior,  the  command,  the  legal  right  and  the  legal 
duty.  I  have  stated  that  the  process  is  in  itself  one 
conservative  of  native  usage,  and  that  the  spirit  in- 
troduced from  above  into  the  administration  of  the 
law  by  English  lawyers  was  also  one  which  tended 
to  stereotype  custom.  You  may  therefore  perhaps 
recall  with  some  surprise  the  reason  which  I  assigned 
in  my  first  Lecture  for  making  haste  to  read  the 
lessons  which  India  furnishes  to  the  juridical  student. 
Indian  usage,  with  other  things  Indian,  was,  I  told 
you,  passing  away.  The  explanation  is  that  you 
have  to  allow  for  an  influence,  which  I  have  merely 
referred  to  as  yet,  in  connection  with  the  exceptional 
Enghsh  Courts  at  Calcutta,  Madras,  and  Bombay. 
Over  the  interior  of  India  it  has  only  begun  to  make 
itself  felt  of  late  j^ears,  but  its  force  is  not  yet  nearly 
spent.  This  is  the  influence  of  English  law  ;  not,  I 
mean,  of  the  spirit  which  animates  English  lawyers 
and  which  is  eminently  conservative,  but  the  conta- 
gion, so  to  speak,  of  the  English  system  of  law, — the 
effect  which  the  body  of  rules  constituting  it  pro- 
duces by  contact  with  native  usage.  Primitive  cus- 
tomary law  has  a  double  pecuharity :  it  is  extremely 
scanty  in  some  departments,  it  is  extremely  prodigal 
of  rules  in  others  ;  but  the  departments  in  which 
rules  are  plentiful  are  exactly  those  which  lose  their 
importance   as    the  movements   of    society   becomfc 


LECT.  in.  INFLUENCE    OF   ENGLISH    LAW.  75 

quicker  and  more  various.  The  body  of  persons  tc 
whose  memory  the  customs  are  committed  has  pro- 
bably always  been  a  quasi-legislative  as  well  as  a 
quasi  judicial  body,  and  has  always  added  to  the 
stock  of  usage  by  tacitly  inventing  new  rules  to  apply 
to  cases  which  are  really  new.  When,  however,  the 
customary  law  has  once  been  reduced  to  writing  and 
recorded  by  the  process  which  1  have  described,  it 
does  not  supply  express  rules  or  principles  in  nearly 
sufficient  number  to  settle  the  disputes  occasioned  by 
the  increased  activity  of  life  and  the  multiplied  wants 
which  result  from  the  peace  and  plenty  due  to  British 
rule.  The  consequence  is  wholesale  and  indiscrimi- 
nate borrowing  from  the  English  law — ihe  most 
copious  system  of  express  rules  known  to  the  world. 
The  Judge  reads  English  law-books  ;  the  young 
native  lawyers  read  them,  for  law  is  the  study  into 
which  the  educated  youtli  of  the  country  are  throw- 
ing themselves,  and  for  which  they  may  even  be  said 
to  display  something  very  like  genius.  You  may 
ask  what  authority  have  these  borrowed  rules  in 
India.  Technically,  they  have  none  whatever ;  yet, 
though  they  are  taken  (and  not  always  correctly 
taken)  from  a  law  of  entirely  foreign  origin,  they  are 
adopted  as  if  they  naturally  commended  themselves 
to  the  reason  of  mankind  ;  and  all  that  can  be  said 
of  the  process  is  that  it  is  another  example  of  the 
influence,  often  felt  in  European  legal  history,  whicli 


76  CONNECTION"  OF  EASTEEN  AND  WESTERN  JUSTICE,  lect.  m 

express  written  law  invariabl}^  exercises  on  unwritten 
customary  law  when  they  are  found  side  by  side. 
For  myself,  I  cannot  say  that  I  regard  this  transmu- 
tation of  law  as  otherwise  than  lamentable.  It  is  not 
a  correction  of  native  usage  where  it  is  unwholesome. 
It  allows  that  usage  to  stand,  and  confirms  it  rather 
than  otherwise  ;  but  it  fills  up  its  interstices  with 
unamaigamated  masses  of  foreign  law.  And  in  a 
very  few  years  it  will  destroy  its  interest  for  the 
historical  jurist,  by  rendering  it  impossible  to  deter- 
mine what  parts  of  the  structure  are  of  native  and 
what  of  foreign  origin.  Nor  will  the  remedial  pro- 
cess which  it  is  absolutely  necessary  to  apply  for  the 
credit  of  the  British  name  restore  the  integrity  of  the 
native  system.  For  the  cure  can  only  consist  in  the 
enactment  of  uniform,  simple,  codified  law,  formed 
for  the  most  part  upon  the  best  European  models. 

It  is  most  desirable  that  one  great  branch  of  native 
Indian  usage  should  be  thoroughly  examined  before  it 
decays,  inasmuch  as  it  is  through  it  that  we  are  able 
to  connect  Indian  customary  law  with  what  appears 
to  have  once  been  the  customary  law  of  the  Western 
AVorld.  I  speak  of  the  Indian  customs  of  agricultural 
tenure  and  of  collective  property  in  land. 

For  many  years  past  there  has  been  sufficient 
evidence  to  warrant  the  assertion  that  the  oldest  dis- 
coverable forms  of  property  in  land  were  forms  of 
collective  property,  and  to  justify  the  conjecture  that 


LBCX.  in.  VON   MAURER.  7J 

separate  property  had  grown  through  a  series  (though 
not  always  an  identical  series)  of  changes,  out  of  col- 
lective property  or  ownership  in  common.  But  the 
testimony  which  was  furnished  by  the  Western  World 
had  one  peculiarity.  The  forms  of  collective  property 
which  had  survived  and  were  open  to  actual  observa- 
tion were  believed  to  be  found  exclusively  in  countries 
peopled  by  the  Sclavonic  race.  It  is  true  that  histo- 
rical scholars  who  had  made  a  special  study  of  the 
evidence  concerning  ancient  Teutonic  holdings,  as,  for 
example,  the  early  English  holdings,  might  have  been 
able  to  assert  of  them  that  they  pointed  to  the  same 
conclusions  as  the  Sclavonic  forms  of  village  property ; 
but  the  existing  law  of  property  in  land,  its  actual 
distribution  and  the  modes  of  enjoying  it,  were  sup- 
posed to  have  been  exclusively  determined  in  Teutonic 
countries  by  their  later  history.  It  was  not  until 
Von  Maurer  published  a  series  of  works,  in  which  his 
conclusions  were  very  gradually  developed,  that  the 
close  correspondence  between  the  early  history  of 
Teutonic  property  and  the  facts  of  proprietary  enjoy- 
ment in  the  Germany  of  our  own  day  was  fully  estab- 
lished ;  and  not  two  years  have  elapsed  since  Nasse 
called  attention  to  the  plain  and  abundant  vestiges 
of  collective  Teutonic  property  which  are  to  be  traced 
in  England. 

I  shall  not  attempt  to  do  more  than  give  you  such 
a  summary  of  Yon  Maurer's  conclusions  as  may  suffice 


78  THE   TEUTONIC   VILLAGE-COMMUNITIES.      lect.  m 

to  connect  them  with  the  results  of  official  observation 
and  administrative  enquiry  in  India.  You  will  find 
a  somewhat  fuller  compendium  of  them  in  the  paper 
contributed  by  Mr.  Morier  to  the  volume  recently 
published,  called  'Systems  of  Land  Tenure  in  Various 
Countries.'  Mr.  Morier  is  the  English  Charge  d' Af- 
faires at  Darmstadt,  and  he  assures  me  that  his  account 
of  the  abundant  vestiges  of  collective  property  which 
are  to  be  found  in  the  more  backward  parts  of 
Germany  may  easily  be  verified  by  the  eye.  They 
are  extremely  plain  in  some  territorial  maps  with 
which  he  has  been  good  enough  to  supply  me. 

The  ancient  Teutonic  cultivating  community,  as  it 
existed  in  Germany  itself,  appsars  to  have  been  thus 
organised.  It  consisted  of  a  number  of  families 
standing  in  a  proprietary  relation  to  a  district  divided 
into  three  parts.  These  three  portions  were  the  Mark 
of  the  Township  or  Village,  the  Common  Mark  or 
waste,  and  the  Arable  Mark  or  cultivated  area.  The 
community  inhabited  the  village,  held  the  common 
mai-k  in  mixed  ownership,  and  cultivated  the  arable 
mark  in  lots  appropriated  to  the  several  families. 

Each  family  in  the  township  was  governed  by  its 
own  free  head  or  paterfamilias.  The  precinct  of  the 
family  dwelling  house  could  be  entered  by  nobody 
but  himself  and  those  under  his  patria  potestas^  not 
even  by  officers  of  the  law,  for  he  himself  made  law 
within  and  enforced  law  made  without. 


MCT.  in.       THE   TEUTONIC  VILLAGE-COMIIUNITIES.  7S 

But,  while  he  stood  under  no  relations  controllable 
by  others  to  the  members  of  his  family,  he  stood  in  a 
number  of  very  intricate  relations  to  the  other  heads 
of  families.  The  sphere  of  usage  or  customary  law 
was  not  the  family,  but  the  connection  of  one  family 
with  another  and  with  the  aggregate  community. 

Confining  ourselves  to  proprietary  relations,  we 
find  that  his  rights  or  (what  is  the  same  thing)  the 
rights  of  his  family  over  the  Common  Mark  are  con- 
trolled or  modified  by  the  fights  of  every  other 
family.  It  is  a  strict  ownership  in  common,  both  .in 
theory  and  in  practice.  When  cattle  grazed  on  the 
common  pasture,  or  when  the  householder  felled  wood 
in  the  common  forest,  an  elected  or  hereditary  ofiicer 
watched  to  see  that  the  common  domain  was  equitably 
enjoyed. 

But  the  proprietary  relation  of  the  householder 
which  has  most  interest  for  us  is  his  relation  to  the 
Arable  Mark.  It  seems  always  in  theory  to  have  been 
originally  cut  out  of  the  common  mark,  which  indeed 
can  only  be  described  as  the  portion  of  the  village 
domain  not  appropriated  to  cultivation.  In  this  uni- 
versally recognised  original  severance  of  the  arable 
mark  from  the  common  mark  we  come  very  close  upon 
the  beginning  of  separate  or  individual  property. 
The  cultivated  land  of  the  Teutonic  vilWe-communitv 
appears  almost  invariably  to  have  been  divided  into 
three  great  fields.      A  rude  rotation  of  crops  was  the 


80  THE   AEABLE   MAEK.  lecx.  m. 

object  of  this  threefold  division,  and  it  was  intended 
that  each  field  should  he  fallow  once  in  three  years. 

The  fields  under  tillage  were  not  however   culti- 
vated by  labour  in  common.     Each  householder  has 
his   own  family  lot  in  each  of  the  three  fields,  and 
this  he  tills  by  his  own  labour,  and  that  of  his  sons 
and   his    slaves.       But   he    cannot   cultivate    as    he 
pleases.     He  must  sow  the  same  crop  as  the  rest  of 
the  community,  and  allow  his  lot  in  the  uncultivated 
field  to  lie  fallow  with  the  others.     Nothing  he   does 
must  interfere  with  the  right  of  other  households  to 
have  pasture  for  sheep  and  oxen  in  the  fallow  and 
among  the  stubbles  of  the  fields  under  tillage.     The 
rules  regulating  the  modes  of  cultivating  the  various 
lots  seem  to  have  been  extremely  careful  and  compli- 
cated, and  thus  we  may  say  without  much  rashness 
that  the  earliest  law  of  landed  property  arose  at  the 
same  time  when  the  first  traces  of  individual  property 
be  fan   to  show  themselves,   and  took  the    form   of 
usages  intended  to  produce  strict  uniformity  of  culti- 
vation in  all  the  lots  of  gi'ound  for  the  first  time 
appropriated.     That  these  rules  should  be  intricate 
is    only  what  might   be   expected.     The   simplicity 
of  the  earliest  family  law  is  not  produced  by  any 
original  tendency  of  mankind,    but   is   merely   the 
simplicity  which  goes  always  with  pure  despotism. 
Ancient  systems  of  law   are   in   one    sense    scanty. 
The  number  of  subjects   with   which   they   deal    is 


LECT.  lU.  THE    .iEABLE   M.VRK.  81 

small,  and,  from  the  modern  jurist's  point  of  view, 
there  are  great  gaps  in  them.  But  the  number  of 
minute  rules  which  they  accumulate  between  narrow 
limits  is  very  surprising.  The  most  astonishing 
example  of  this  is  to  be  found  in  the  translation  of 
the  Ancient  Irish  law  now  in  course  of  publication 
by  the  Irish  Government.  The  skeleton  of  this  law 
is  meagre  enough,  but  the  quantity  of  detail  is  vast — 
so  vast  that  I  cannot  but  believe  that  much  of  it  is 
attributable  to  the  perverted  ingenuity  of  a  class  of 
hereditary  lawyers. 

The  evidence  appears  to  me  to  establish  that  the 
Arable  i\Iark  of  the  Teutonic  village-community  was 
occasionally  shifted  from  one  part  of  the  general 
village  domain  to  another.  It  seems  also  to  show 
that  the  original  distribution  of  the  arable  area  was 
always  into  exactly  equal  portions,  corresponding  to 
the  number  of  free  families  in  the  township.  Xoi 
can  it  be  seriously  doubted  upon  the  e\ddence  that 
the  proprietary  equality  of  the  families  composing 
the  group  was  at  first  still  further  secured  by  a 
periodical  redistribution  of  the  several  assignments. 
The  point  is  one  of  some  importance.  One  stage  in 
the  transition  from  collective  to  individual  property 
was  reached  when  the  part  of  the  domain  under 
cultivation  was  allotted  among  the  Teutonic  races  to 
the  several  families  of  the  to"wnship  ;  another  was 
gained  when  the  system  of  '  shifting  severalties '  came 

G 


89  THE   ARABLE   HARK.  LBCX.  Ill 

to  an  end,  and  each  family  was  confirmed  for  a 
perpetuity  in  the  enjoyment  of  its  several  lots  of 
land,  liut  there  appears  to  be  no  country  inhabited 
by  an  Aryan  race  in  which  traces  do  not  remain  of 
the  ancient  periodical  redistribution.  It  has  con- 
tinued to  our  own  day  in  the  Russian  villages. 
Among  the  Hindoo  villagers  there  are  widely  ex- 
tending traditions  of  the  practice ;  and  it  was  doubt- 
less the  source  of  certain  usages,  to  be  hereafter 
described,  which  have  survived  to  our  day  in  Eng- 
land and  Germany. 

I  quote  from  Mr.  Morier's  paper  the  following  ob- 
servations. '  These  two  distinct  aspects  of  the  early 
Teutonic  freeman  as  a  *'lord"  and  a  "commoner" 
united  in  the  same  person — one  when  within  the  pale 
of  his  homestead,  the  other  when  standing  outside 
that  pale  in  the  economy  of  the  mark — should  not  be 
lost  sight  of.  In  them  are  reflected  the  two  salient 
characteristics  of  the  Teutonic  race,  the  spirit  of 
individuality,  and  its  spirit  of  association  ;  and  as  the 
action  and  reaction  of  these  two  laws  have  deter- 
mined the  social  and  political  history  of  the  race,  so 
they  have  in  an  especial  manner  affected  and  deter- 
mined its  agricultural  history.' 

Those  of  you  who  are  familiar  with  the  works  of 
Palgrave,  Kemble,  and  Freeman,  are  aware  that  the 
most  learned  writers  on  the  early  English  proprietary 
system  give  an  account  of  it  not  at  variance  in  any 


LECT.  m.  EXGLISH   THEORIES    OF    LAXD-LAW.  89 

material  point  with  the  description  of  the  Teutonic 
mark  which  I  have  repeated  from  Von  Maurer.  The 
question,  then,  which  at  once  presses  on  us  is  whether 
an  ancient  form  of  property,  which  has  left  on 
Germany  traces  so  deep  and  durable  that  (again  to 
quote  Mr.  Morier)  they  may  always  be  followed 
on  ordinary  territorial  maps,  must  be  believed  to  have 
quite  died  out  in  England,  leading  no  sign  of  itself 
behind  ?  Unquestionably  the  answer  furnished  by 
the  received  text-books  of  English  real-property  law 
is  affirmative.  They  either  assume,  or  irresistibly 
suggest,  that  the  modern  law  is  separated  from  the 
ancient  law  by  some  great  interruption  ;  and  Nasse, 
the  object  of  whose  work  is  to  establish  the  survival 
of  the  Mark  in  England,  allows  that  German 
enquirers  had  been  generally  under  the  impression 
that  the  history  of  landed  property  in  this  country 
was  characterised  by  an  exceptional  discontinuity. 
There  is  much  in  the  technical  theory  of  our  real- 
property  law  which  explains  these  opinions  ;  and  it 
is  less  wonderful  that  lawyers  should  have  been  led 
to  them  by  study  of  the  books,  than  that  no  doubt 
of  their  soundness  should  have  been  created  by  facts 
with  which  practitioners  were  occasionally  well 
acquainted.  These  facts,  establishing  the  long  con- 
tinuance of  joint  cultivation  by  groups  modelled  on 
the  community  of  the  Mark,  were  strongly  pressed 
upon  the  Select  Committee  of  the  House  of  Commons 

o  2 


84  ENGLISH   THEORIES   OF   LAND-LAW.  lect.  ra 

which  sat  to  consider  the  subject  of  inclosures  in 
1844  by  a  witness,  Mr.  Blamire,  who  was  at  once  a 
lawyer  and  an  official  unusually  familiar  with  English 
landed  property  in  its  less  usual  shapes.  Yet  Mr. 
Blamire  appears  ('  Evidence  before  Select  Committee 
of  1844,'  p.  32,  q.  335)  to  have  unreservedly  adopted 
the  popular  theory  on  the  subject,  which  I  believe  to 
be  that  at  some  period — sometimes  vaguely  associated 
with  the  feudalisation  of  Europe,  sometimes  more 
precisely  with  the  Norman  Conquest — the  entire  soil 
of  England  was  confiscated  ;  that  the  whole  of  each 
manor  became  the  lord's  demesne  ;  that  the  lord 
divided  certain  parts  of  it  among  his  free  retainers, 
but  kept  a  part  in  his  own  hands  to  be  tilled  by  his 
villeins  ;  that  all  which  was  not  required  for  this 
distribution  was  left  as  the  lord's  waste  ;  and  that  all 
customs  which  cannot  be  traced  to  feudal  principles 
grew  up  insensibly,  through  the  subsequent  tolerance 
of  the  feudal  chief. 

There  has  been  growing  attention  for  some  years 
past  to  a  part  of  the  observable  phenomena  which 
prove  the  unsoundness  of  the  popular  impression. 
Many  have  seen  that  the  history  of  agriculture,  of 
land-law,  and  of  the  relations  of  classes  cannot  be 
thoroughly  constructed  until  the  process  has  been 
thoroughly  deciphered  by  which  the  common  or 
waste-land  was  brought  under  cultivation  either  by 
the  lord  of  the  manor  or  by  the  lord  of  the  manoT 


LECi.  ni.  THE   AEABLE    MAEK   IN   ENGLAND.  % 

in  connection  with  the  commoners.  The  history  of 
Inclosures  and  of  Inclosure  Acts  is  now  recognised  as 
of  great  importance  to  our  general  history.  But 
corresponding  study  has  not,  or  not  of  late,  been 
bestowed  on  another  set  of  traces  left  by  the  past 
The  Arable  Mark  has  survived  among  us  as  well  as 
the  Common  Mark  or  waste,  and  it  the  more  de- 
serves our  attention  in  this  place  because  its  interest 
is  not  social  or  political  but  purely  juridical. 

The  lands  which  represent  the  cultivated  portion 
of  the  domain  of  the  ancient  Teutonic  village-com- 
munities are  found  more  or  less  in  all  parts  of  England, 
but  more  abundantly  in  some  counties  than  in  others. 
They  are  known  by  various  names.  When  the  soil  is 
arable,  they  are  most  usually  called  '  common,'  '  com- 
monable,' or  '  open '  fields,  or  sometimes  simply  '  inter- 
mixed '  lands.  When  the  lands  are  in  grass,  they  are 
sometimes  known  as  '  lot  meadows,'  sometimes  as 
'  lammas  lands,'  though  the  last  expression  is  occa- 
sionally used  of  arable  soil.  The  '  common  fields '  are 
almost  invariably  divided  into  three  long  strips,  sepa- 
rated by  green  baulks  of  turf.  The  several  properties 
consist  in  subdivisions  of  these  strips,  sometimes 
exceedingly  minute  ;  and  there  is  a  great  deal  of 
evidence  that  one  several  share  in  each  of  the  strips 
belonged  originally  to  the  same  ownership,  and  that 
all  the  several  shares  in  any  one  strip  were  originally 
equal  or  nearly  equal,  though  in  progress  of  time  a 


06  THE   COMMON   FIELDS.  lect.  ui 

«-ood  many  have  been  accumulated  in  the  same  hands. 
The  agricultural  customs  which  prevail  in  these 
common  fields  are  singularly  alike.  Each  strip  bears 
two  crops  of  a  different  kind  in  turn  and  then  lies 
fallow.  The  better  opinion  seems  to  be  that  the 
custom  as  to  the  succession  of  crops  would  not  be 
sustained  at  law;  but  the  right  to  feed  sheep  or  cattle 
on  the  whole  of  one  strip  during  the  fallow  year,  or 
among  the  stubbles  of  the  other  two  strips  after  the 
crops  have  been  got  in,  or  on  the  green  baulks  which 
divide  the  three  fields,  is  generally  treated  as  capable 
of  being  legally  maintained.  This  right  has  in  some 
cases  passed  to  the  lord  of  the  manor,  but  sometimes 
it  is  vested  in  the  body  of  persons  who  are  owners  of 
the  several  shares  in  the  common  fields.  The  grass 
lands  bear  even  more  distinct  traces  of  primitive 
usage.  The  several  shares  in  the  arable  fields,  some- 
times, but  very  rarely,  shift  from  one  owner  to 
another  in  each  successive  year;  but  this  is  frequently 
the  rule  with  the  meadows,  which,  when  they  are 
themselves  in  a  state  of  severalty,  are  often  distribu- 
ted once  a  year  by  casting  lots  among  the  persons 
entitled  to  appropriate  and  enclose  them,  or  else 
change  from  one  possessor  to  another  in  the  order  of 
the  names  of  persons  or  tenements  on  a  roll.  As  a 
rule  the  inclosures  are  removed  after  the  hay-harvest 
and  there  are  manors  in  which  tbey  are  taken  down 
by   the   villagers   on   Lammas    Day    (that   is,    Old 


LECT.  in.  SHIFTING   SEVERALTIES.  87 

Lammas  Day)  in  a  sort  of  legalised  tumultuary 
assembly.  The  group  of  persons  entitled  to  use  the 
meadows  after  they  have  been  thrown  open  is  often 
larger  than  the  number  of  persons  entitled  to  en- 
close them.  All  the  householders  in  a  parish,  and 
not  merely  the  landowners,  are  found  enjoying  this 
right.  The  same  peculiarity  occasionally,  but  much 
more  rarely,  characterises  the  rights  over  common 
arable  fields ;  and  it  is  a  point  of  some  interest,  since 
an  epoch  in  the  history  of  primitive  groups  occurs 
when  they  cease  to  become  capable  of  absorbing 
strangers.  The  English  cultivating  communities  may 
be  supposed  to  have  admitted  new-comers  to  a  limited 
enjoyment  of  the  meadows,  up  to  a  later  date  than 
the  period  at  which  the  arable  land  had  become  the 
exclusive  property  of  the  older  families  of  the  group. 
The  statute  24  Geo.  II.  c.  23,  which  altered  the 
English  Calendar,  recites  (s.  5)  the  frequency  of 
these  ancient  customs  and  forms  of  property,  and 
provides  that  the  periods  for  commencing  common 
enjoyment  shall  be  reckoned  by  the  old  account  of 
time.  They  have  been  frequently  noticed  by  agri- 
cultural writers,  who  have  strongly  and  unanimously 
condemned  them.  There  is  but  one  voice  as  to  the 
barbarousness  of  the  agriculture  perpetuated  in  the 
common  arable  fields,  and  as  to  the  quarrels  and 
heart-burning  of  which  the  'shifting  severalties'  in 
the  meadow  land  have  been  the  source      Put  both 


88  GREAT    EXTENT   OP   THE    COMMON   FIELDS,    lzct.  ni 

common  fields  and  common  meadows  are  still  plenti- 
ful on  all  sides  of  us.  Speaking  for  myself  person- 
ally, I  have  been  greatly  surprised  at  the  number  of 
instances  of  abnormal  proprietary  rights,  necessarily 
implying  the  former  existence  of  collective  owner- 
ship and  joint  cultivation,  which  comparatively  brief 
enquiry  has  brought  to  my  notice  ;  nor  can  I  doubt 
that  a  hundred  and  fifty  years  ago  instances  of  such 
rights  could  have  been  produced  in  vastly  greater 
numbers,  since  Private  Acts  of  Parliament  for  the 
inclosure  of  commonable  fields  were  constantly 
passed  in  the  latter  part  of  the  last  and  the  earlier 
part  of  the  present  century,  and  since  1836  they 
have  been  extensively  enclosed,  agglomerated,  and 
exchanged  under  the  Common  Fields  Inclosure  Act 
passed  in  that  year,  and  under  the  general  powers 
more  recently  vested  in  the  Inclosure  Commissioners. 
The  breadth  of  land  which  was  comparatively  recently 
in  an  open,  waste,  or  commonable  condition,  and 
which  therefore  bore  the  traces  of  the  ancient  Teu- 
tonic cultivating  system,  may  be  gathered  from  a 
passage  in  which  Nasse  sums  up  the  statements  made 
in  a  number  of  works  by  a  writer,  Marshall,  whom  I 
shall  presently  quote.  '  In  almost  all  parts  of  the 
country,  in  the  Midland  and  Eastern  Counties  par- 
ticularly, but  also  in  the  West — in  Wiltshire  for  ex- 
ample— in  the  South,  as  in  Surrey,  in  the  North,  as 
in  Yorkshire,  there  are  extensive  open  and  common 


tECX   m.    GREAT    EXTENT    OF   THE    COMMON    FIELDS.  SS 

fields.  Out  of  316  parishes  in  Northamptonshire,  89 
are  in  this  condition ;  more  than  100  in  Oxfordshire; 
about  50,000  acres  in  Warwickshire  ;  in  Berkshire, 
half  the  county  ;  more  than  half  of  Wiltshire  ;  in 
Huntingdonshire,  out  of  a  total  area  of  240,000  acres, 
130,000  were  commonable  meadows,  commons,  and 
common  fields.'  (Ueber  die  Mittelalterliche  Feld- 
gemeinschaft  in  England,' p.  4.)  The  extent  of  some 
of  the  fields  may  be  inferred  from  the  fact,  stated  to 
me  on  good  authority,  that  the  pasturage  on  the  divid- 
ing  baulks  of  turf,  which  were  not  more  than  three 
yards  wide,  was  estimated  in  one  case  at  eighty  acres. 
These  footprints  of  the  past  were  quite  recently  found 
close  to  the  capital  and  to  the  seats  of  both  Uni- 
versities. In  Cambridgeshire  they  doubtless  corre- 
sponded to  the  isolated  patches  of  dry  soil  which  were 
scattered  through  the  fens,  and  in  the  metropolitan 
county  of  Surrey,  of  which  the  sandy  and  barren  soil 
produced  much  the  same  isolation  of  tillage  as  did  the 
morasses  of  the  fen  country,  they  occurred  so  close  to 
London  as  to  impede  the  extension  of  its  suburbs, 
through  the  inconvenient  customs  which  they  placed 
in  the  way  of  building.  One  of  the  largest  of  the 
common  fields  was  found  in  the  immediate  neigh- 
bourhood of  Oxford  ;  and  the  grassy  baulks  which 
anciently  separated  the  three  fields  are  still  conspi- 
cuous fi'om  the  branch  of  the  Great  Northern  Railway 
which  leads  to  Cambridire. 


90  EXTRACT  FROM  MARSHALL.       MCl.  ni 

The  extract  from  Marshall's  '  Elementary  and 
Practical  Treatise  on  Landed  Property'  (London, 
1804)  which  I  am  about  to  read  to  you,  is  in  some 
ways  very  remarkable.  Mr.  William  Marshall  was  a 
writer  on  agriculture  who  published  largely  between 
1770  and  1820,  and  he  has  left  an  account  of  the  state 
of  cultivation  in  almost  every  English  county.  He 
had  been  engaged  for  many  years  in  'studying  the  im- 
provement and  directing  the  management  of  several 
large  estates  in  England,  Wales  and  Scotland,'  and  he 
had  taken  a  keen  interest  in  what  he  terms  '  provin- 
cial practices.'  The  picture  of  the  ancient  state  of 
England  which  follows,  was  formed  in  his  mind  from 
simple  observation  of  the  phenomena  of  custom, 
tillage,  and  territorial  arrangement  which  he  saw 
before  his  eyes.  You  will  perceive  that  he  had  not 
the  true  key  in  his  possession,  and  that  he  figured  to 
himself  the  collective  form  of  property  as  a  sort  of 
common  farm,  cultivated  by  the  tenantry  of  a  single 
landlord. 

'  In  this  place  it  is  sufficient  to  premise  that  a  very 
few  centuries  ago,  nearly  the  whole  of  the  lands  of 
England  lay  in  an  open,  and  more  or  less  in  a  com- 
monable state.  Each  parish  or  township  (at  least 
in  the  more  central  and  northern  districts),  comprised 
different  descriptions  of  lands  ;  having  been  sub- 
jected, during  successive  ages,  to  specified  modes  of 
occupancy,    under   ancient   and    strict    regulations. 


LECT.  III.  EXTRACT   FROM   MARSHALL.  91 

which  time  had  converted  to  law.  These  parochial 
arrangements,  however,  varied  somewhat  in  different 
districts  ;  but  in  the  more  central  and  greater  part 
of  the  kingdom,  not  widely;  and  the  following  state- 
ment may  serve  to  convey  a  general  idea  of  the  whole 
of  what  may  be  termed  Common-field  Townships, 
throughout  England. 

'  Under  this  ingenious  mode  of  organisation,  each 
parish  or  township  was  considered  as  one  common 
farm  ;  though  the  tenantry  were  numerous. 

'  Round  the  village,  in  which  the  tenants  resided, 
lay  a  few  small  inclosures,  or  grass  yards  ;  for  rear- 
ing calves,  and  as  baiting  and  nursery  grounds  for 
other  farm  stock.  This  was  the  common  farmstead, 
or  homestall,  which  was  generally  placed  as  near  the 
centre  of  the  more  culturable  lands  of  the  parish  or 
toMmship  as  water  and  shelter  would  permit. 

*  Round  the  homestall,  lay  a  suit  of  arable  fields  ; 
including  the  deepest  and  soundest  of  the  lower 
grounds,  situated  out  of  water's  way  ;  for  raising 
corn  and  pulse  ;  as  well  as  to  produce  fodder  and 
litter  for  cattle  and  horses  in  the  winter  season. 

'  And,  in  the  lowest  situation,  as  in  the  water- 
formed  base  of  a  rivered  valley,  or  in  swampy  dips, 
shooting  up  among  the  arable  lands,  lay  an  extent  of 
meadow  grounds,  or  "ings  "  ;  to  afford  a  supply  of 
hay,  for  cows  and  working  stock,  in  the  winter  and 
spring  months. 


92  EXTRACT   FROM  MARSHALL.  lbct.  in. 

*  On  the  outskirts  of  the  arable  lands,  where  the 
soil  is  adapted  to  the  pasturage  of  cattle,  or  on  the 
springy  slope  of  hills,  less  adapted  to  cultivation,  or 
in  the  fenny  bases  of  valleys,  wliich  were  too  wet,  or 
gravelly  water  formed  lands  which  were  too  dry,  to 
produce  an  annual  supply  of  hay  with  sufficient  cer- 
tainty, one  or  more  stinted  pastures,  or  hams,  were 
laid  out  for  milking  cows,  working  cattle,  or  other 
stock  which  required  superior  pasturage  in  summer. 

'  While  the  bleakest,  worst-soiled,  and  most  distant 
lands  of  the  township,  were  left  in  their  native  wild 
state ;  for  timber  and  fuel ;  and  for  a  common  pasture, 
or  suit  of  pastures ;  for  the  more  ordinary  stock  of 
che  township  ;  whether  horses,  rearing  cattle,  sheep 
or  swine  ;  without  any  other  stint,  or  restriction,  than 
what  the  arable  and  meadow  lands  indirectly  gave  ; 
every  joint-tenant,  or  occupier  of  the  township, 
having  the  nominal  privilege  of  keeping  as  much 
live-stock  on  these  common  pastures,  in  summer,  as 
the  appropriated  lands  he  occupied  would  maintain, 
in  winter. 

'  The  appropriated  lands  of  each  township  were  laid 
out  with  equal  good  sense  and  propriety.  That  each 
occupier  might  have  his  proportionate  share  of  lands 
of  different  qualities,  and  lying  in  different  situations, 
the  arable  lands,  more  particularly,  were  divided  into 
numerous  parcels,  of  sizes,  doubtless,  according  to  the 
size  of  the  given  township,  and  the  number  and  rank 
C'l  the  occupiers. 


LECT.  m.  EXTRACT   FROM   MARSHALL.  S3 

'And,  that  the  whole  might  be  subjected  to  the 
same  plan  of  management,  and  be  conducted  as  one 
common  farm,  the  arable  lands  were  moreover  divided 
into  compartments,  or  "  fields,"  of  nearly  equal  size, 
and  generally  three  in  number,  to  receive,  in  constant 
rotation,  the  triennial  succession  of  fallow,  wheat  (or 
rye)  and  spring  crops  (as  barley,  oats,  beans,  and 
peas)  :  thus  adopting  and  promoting  a  system  of  hus- 
bandry, which,  howsoever  improper  it  is  become,  in 
these  more  enlightened  days,  was  well  adapted  to  the 
state  of  ignorance,  and  vassalage,  of  feudal  times  ; 
when  each  parish  or  township  had  its  sole  proprietor; 
the  occupiers  being  at  once  his  tenants  and  hi? 
soldiers,  or  meaner  vassals.  The  lands  were  in  course 
liable  to  be  more  or  less  deserted  by  their  occupiers, 
and  left  to  the  feebleness  of  the  young,  the  aged,  and 
the  weaker  sex.  But  the  whole  township  being,  in 
this  manner,  thrown  into  one  system,  the  care  and 
management  of  the  live-stock,  at  least,  would  be  easier 
and  better  than  they  would  have  been,  under  any 
other  arrano;ement.  And,  at  all  times,  the  manag-er 
of  the  estate  was  better  enabled  to  detect  bad  hus- 
bandry, and  enforce  that  which  was  more  profitable 
to  the  tenants  and  the  estate,  by  having  the  whole 
spread  under  the  eye,  at  once,  than  he  would  have 
been,  had  the  lands  been  distributed  in  detached 
inclosed  farmlets  ;  besides  avoiding  the  expense  of 
inclosure.     And  another  advantage  arose  from  this 


04  SCOTT   ON   UDAL   TENURES.  lect    iu 

more  social  arrangement,  in  barbarous  times  :  the 
tenants,  by  being  concentrated  in  villages,  were  not 
only  best  situated  to  defend  each  other  from  predatory 
attacks  ;  but  were  called  out,  by  their  lord,  with 
greater  readiness,  in  cases  of  emergency.'  (Marshall, 
pp.  111-113.) 

The  readers  of  the  '  Pirate  '  are,  I  dare  say,  aware 
that  Sir  Walter  Scott  had  his  attention  strongly 
attracted  to  the  so-called  Udal  tenures  of  Orkney  and 
Shetland.  The  fact  has  more  juridical  interest  than 
it  once  had,  now  that  recent  ■writers  have  succeeded 
in  completely  identifying  the  ancient  Scandinavian 
and  ancient  German  proprietary  usages.  In  the 
diary  which  he  wrote  of  his  voyage  with  the  Com 
missioners  of  Lighthouses  round  the  coasts  of  Scot- 
land, Scott  observes  :  '  I  cannot  get  a  distinct  account 
of  the  nature  of  the  land-rights.  The  Udal  pro- 
prietors have  ceased  to  exist,  yet  proper  feudal 
tenures  seem  ill  understood.  Districts  of  ground  are 
in  many  instances  understood  to  belong  to  toAvnships 
or  communities,  possessing  what  may  be  arable  by 
patches  and  what  is  moor  as  a  commonty  pro  indi- 
viso.  But  then  individuals  of  such  a  township  often 
take  it  upon  them  to  grant  feus  of  particular  parts  of 
the  property  thus  possessed  pro  indiviso.  The  town 
of  Lerwick  is  built  upon  a  part  of  the  commonty  of 
Sound ;  the  proprietors  of  the  houses  having  feu-rights 
from   different  heritors  of  that   township,  but   why 


LECT.  in.  COMMONTY   OF   LAUDER.  96 

from  one  rather  than  other  ....  seems  altogetlier 
uncertain  '  (Lockhart's  *  Life  of  Scott,'  iii.  p.  145). 
That  these  tenures  survived  till  lately  in  the  northern 
islands  has  been  long  known,  but  there  has  been  a 
general  impression  that  the  strict  and  consistent 
feudalism  of  Scotland  had  effaced  the  traces  of  older 
Teutonic  usage  in  the  Lowlands.  Yet  a  return 
recently  presented  to  Parliament  suggests  that  a  re- 
examination of  Scottish  agricultural  customs  might 
be  usefully  undertaken.  '  There  are,'  it  is  stated, 
'  within  the  bounds  of  the  royalty  of  the  burgh  of 
Lauder  105  separate  portions  of  land  called  Bur- 
gess Acres.  These  vary  in  extent  fi*om  one  and  a 
half  acre  to  three  and  a  half  acres.  To  each  such 
acre  there  is  a  separate  progress  of  writs,  and  these 
"  Acres  "  are  the  private  and  absolute  property  of 
individuals.  .  .  .  No  one  has  hitherto  been  admitted  a 
burgess  of  the 'burgh  who  has  not  been  an  owner  of 
one  of  these  Burgess  Acres.  The  lands  of  the  burgh 
consist  of  ...  .  Lauder  Common,  extending  to  about 
1,700  acres,  which  has,  from  all  time  of  which  there  is 
any  record,  been  possessed  thus.  A  portion  of  it  has 
been  set  off  periodically,  say  once  in  five  or  seven 
years,  to  be  broken  up  and  ploughed  during  that  time, 
and  at  the  end  of  that  time  fixed  has  been  laid  down 
in  grass,  and  grazed  along  with  the  other  lands: 
when  another  portion  of  the  common  was,  in  the  same 
way,  broken  up  and  ploughed,  and  again  laid  down  in 


93  COMMONTY   OP   LAUDER.  lect   m 

grass.  The  portion  of  the  common  so  broken  up  and 
ploughed  at  a  thne  has,  of  recent  years,  been  about 
130  acres  in  extent.  An  allotment  of  this  portion  of 
the  common  has  been  given  to  the  owner  of  each  of 
the  105  burgess  acres,  whether  he  happened  to  be  a 
burgess  or  not,  one  allotment  for  each  acre.  The 
portion  laid  off  for  cultivation  is,  in  the  first  place, 
cut  into  the  number  of  allotments  required,  and  the 
share  of  each  person  is  decided  by  lot.  The  condi- 
tions attached  to  the  taking  of  hill  parts  have  been, 
compliance  with  a  system  of  cultivation  prescribed  by 
the  town  council,  and  payment  of  a  small  assessment, 
generally  just  sufficient  to  reimburse  the  burgh  for 
expenses  laid  out  in  making  roads,  drains,  &c.,  to 
enhance  the  value  of  the  land  for  cultivation.  These 
allotments  have  been  called  "  Hill  parts,"  and  the 
average  worth  of  each  is  1/.  per  annum.  The  whole 
of  the  remainder  of  the  common  has  been  used  for 
grazing  purposes,  and  has  been  occurred  as  follows  : 
Each  burgess  resident  within  the  bounds  of  the  burgh 
has  grazed  on  the  common  two  cows,  or  an  equivalent, 
and  a  certain  number  of  sheep — at  present,  and  for 
some  years,  fifteen  ;  and  each  widow  of  a  burgess, 
resident  in  the  burgh,  has  grazed  on  the  common  one 
cow,  or  an  equivalent,  and  a  certain  number  of  sheep 
— at  present,  and  for  many  years,  twelve '  ('  Return 
of  Boroughs  or  Cities  in  the  United  Kingdom,  pos- 
sessing Common  Land,'  Appendix  I.,  House  of 
Commons,  Auo:ust  10,  1870). 


LEC7.  in.      PECULIARITIES   OF   SCOTTISH    EXAMPLE.  97 

It  maybe  doubted  whether  a  more  perfect  example 
of  the  primitive  cultivating  community  is  extant  in 
England  or  Germany.  As  compared  with  the  English 
instances,  its  form  is  extremely  archaic.  The  arable 
mark,  cultivated  under  rules  prescribed  by  the  town 
council,  shifts  periodically  from  one  part  of  the  domain 
to  another,  and  the  assignment  of  parcels  within  the 
cultivated  area  is  by  lot.  It  is  interesting  too  to 
observe  that  the  right  to  land  for  purposes  of  tillage 
is  inseparably  connected  with  the  ownership  of  certain 
plots  of  land  within  the  township.  A  similar  con- 
nection between  the  shares  in  the  common  field  and 
certain  ancient  tenements  in  a  village  is  sometimes 
found  in  England  and  has  been  formally  established 
at  law.  (See  the  bitter  complaints  of  Marshall, 
'  Rural  Economy  of  Yorkshire,'  i.  55.)  On  the  other 
hand,  a  group  of  persons  more  loosely  defined  has  the 
right  to  pasture  on  the  part  of  the  common  in  grass, 
and  this  peculiarity  occurs  also  in  England.  I  am 
informed  that  most  of  the  Scottish  burghs  have 
recently  sold  their  '  commonties ; '  but  it  is  to  be 
hoped  that  all  traces  of  the  ancient  customs  of  en- 
joyment have  not  been  quite  obliterated. 

Upon  the  evidence  collected  by  Nasse,  supplied 
by  the  works  of  Marshall,  and  furnished  by  the  wit- 
nesses examined  before  the  Select  Committee  of  1 844, 
and  upon  such  as  I  have  myself  been  able  to  gather, 
the  vestiges  of  the  Teutonic  village-community  which 

H 


08  VESTIGES    OF   THE    MARK.  lect.  m 

remained  before  the  inclosures  of  the  last  century 
and  the  present  may  be  thus  compendiously  described ; 
The  arable  part  of  the  domain  was  indicated  ( 1 )  by 
simple  intermixed  fields,  i.e.  fields  of  nearly  equal  size 
mingled  together  and  belonging  to  an  extraordinary 
number  of  owners,  so  that,  according  to  Mr.  Blamire's 
statement,  in  one  parish  containing  2,831  acres  there 
were  (in  1844)  2,315  pieces  of  open  land  which 
included  2,327  a,cres,  giving  an  average  size  of  one 
acre  (Evidence,  Select  Committee,  p.  17,  q.  185)  ; 
(2)  by  fields  of  nearly  equal  size  arranged  in  three 
long  strips  and  subject  to  various  customs  of  tillage, 
the  most  universal  being  the  fallow  observed  by 
each  of  the  strips  in  successive  years  ;  (3)  by 
'  shiftinof  severalties '  of  arable  land,  which  were 
not,  however,  of  frequent  occurrence  ;  (4)  by  the 
existence  of  certain  rights  of  pasture  over  the  green 
baulks  which  prevented  their  removal. 

The  portion  of  the  domain  kept  in  grass  was 
represented:  (1)  by  'shifting  severalties'  of  mea- 
dow land,  which  were  very  frequent,  the  modes  of 
successive  allotment  being  also  very  various  ;  (2)  by 
the  removal  of  inclosures  after  hay-harvest  ;  (3)  by 
the  exercise,  on  the  part  of  a  community  generally 
larger  than  the  number  of  persons  entitled  to  enclose, 
of  a  right  to  pasture  sheep  and  cattle  on  the  meadow- 
land  during  the  period  when  the  hay  was  not  matur- 
ing for  harvest. 


LECT.  in.  VESTIGES    OF   THE    MARK.  9H 

The  rights  known  to  exist  over  Commons  consti- 
tute much  too  large  a  subject  to  be  treated  of  here. 
But  two  relics  of  the  ancient  collective  cultivation  may 
be  specially  mentioned.     The  supervision  of  the  com- 
munal officer  who  watched  over  the  equitable  enjoy- 
ment of  the  pastures  has  become  the  custom  of  '  stint 
of  common,'  by  which  the  number  of  the  beasts  which 
the  commoner  might  turn  out  on  the  waste  is  limited 
and  regulated.     There  is  also  a  good  deal  of  evidence 
that   some   commons,  now  entirely  waste,  bear   the 
traces  of  ancient  tillage.    The  most  probable  explana- 
tion is  that  in  these  cases  the  whole  of  the  arable 
mark  had  been  removed  from  one  part  of  the  domain 
to  another,  and  that  the  traces  of  cultivation  show  the 
place  of  common  fields  anciently  deserted. 


B  9 


LECTURE    IV. 

THE  EASTERN  YILLAGE-COMMUNIIY 


CONTENTS. 

The  Indian  Village-Community — Mahometan  Tlieory  of  Ownership 
— Land  Settlement  of  Bengal — Tlie  Indian  Proprietary  Unit — 
The  Indian  Village — The  Cultivated  Land — The  Growth  of 
Custom — Water  Eiiles — The  Sources  of  Primitive  Law — 
Customs  of  Re-partition — The  Village — Secrecy  of  Family  Life — 
Dislike  of  English  Criminal  Law — Fictions  Attending  Legislation 
— Village  Rules — Origin  of  Indian  Towns — Indian  Capitals — The 
Village  Waste — The  Indian  Wastes — The  Government  and  the 
Wastes — The  Village  Council — Peaceful  Character  of  Population 
— Hereditary  Trades — Remuneration  of  Village  Traders — The 
Outsiders — Absorption  of  Strangers  by  Community. 


LECTURE  IV. 

THE   EASTERN   VILLAGE-COMMUNITY. 

I  PROPOSE  in  this  Lecture  to  describe  summarily 
and  remark  upon  the  Indian  forms  of  property  and 
tenure  corresponding  to  the  ancient  modes  of  holding 
and  cultivating  land  in  Europe  which  I  discussed  at 
some  length  last  week.  It  does  not  appear  to  me  a 
hazardous  proposition  that  the  Indian  and  the  ancient 
European  systems  of  enjoyment  and  tillage  by  men 
grouped  in  village-communities  are  in  all  essential 
particulars  identical.  There  are  differences  of  detail 
between  them,  and  I  think  you  will  find  the  discus- 
sion of  these  differences  and  of  their  apparent  causes 
not  uninteresting  nor  barren  of  instruction  to  the 
student  of  jurisprudence. 

No  Indian  phenomenon  has  been  more  carefully 
examined,  and  by  men  more  thoroughly  in  earnest, 
than  the  Village-Community.  For  many  years  past 
the  discovery  and  recognition  of  its  existence  have 
ranked  among  the  greatest  achievements  of  Anglo- 
Indian  administration.  But  the  Village-Community 
did  not   emerge   into  clear  light  very  early  in  the 


104  MAHOMETAN   THEORY   OF   OWNERSHIP.       lect.  r7 

history  of  our  conquest  and  government.  Although 
this  peculiar  group  is  referred  to  in  Manu,  the  English 
found  little  to  guide  them  to  its  great  importance  in 
the  Brahminical  codified  law  of  the  Hindoos  which 
they  first  examined.  Perhaps  in  the  large  space 
assigned  in  that  law  to  joint-property  and  partitions 
they  might  have  found  a  hint  of  the  truth,  if  the 
great  province  in  which  they  were  first  called  upon 
to  practise  administration  on  a  large  scale,  Lower 
Bengal  or  Bengal  Proper,  had  not  happened  to  be  the 
exact  part  of  India  in  which,  from  causes  not  yet 
fully  determined,  the  village  system  had  fallen  into 
great  decay.  The  assumption  which  the  English 
first  made  was  one  which  they  inherited  from  their 
Mahometan  predecessors.  It  was,  that  all  the  soil 
belonged  in  absolute  property  to  the  sovereign,  and 
that  all  private  property  in  land  existed  by  his 
sufferance.  The  Mahometan  theory  and  the  corre- 
sponding Mahometan  practice  had  put  out  of  sight  the 
ancient  view  of  the  sovereign's  rights,  which,  though 
it  assigned  to  him  a  far  larger  share  of  the  produce  of 
the  land  than  any  western  ruler  has  ever  claimed,  yet 
in  nowise  denied  the  existence  of  private  property  in 
land.  The  English  began  to  act  in  perfect  good  faith 
on  the  ideas  which  they  found  universally  prevailing 
among  the  functionaries  whom  they  had  taken  over 
from  the  Mahometan  semi-independent  viceroys  de- 
throned by  their  arms.     Their  earliest  experiments. 


LEcr.  rv.  LAND    SETTLEMENT   OF   BENGAL.  105 

tried  in  the  belief  that  the  soil  was  theirs  and  that 
any  land-law  would  be  of  their  exclusive  creation,  have 
now  passed  into  proverbs  of  maladroit  management. 
The  most  famous  of  them  was  the  settlement  of 
Lower  Bengal  by  Lord  Cornwallis.  It  was  an  at- 
tempt to  create  a  landed-proprietary  like  that  of  this 
country.  The  policy  of  conferring  estates  in  fee 
simple  on  the  natural  aristocracy  of  certain  parts  of 
India  (and  I  mean  by  a  '  natural  aristocracy '  an 
aristocracy  formed  under  purely  native  conditions  of 
society  by  what  amounts  to  the  sternest  process  of 
natural  selection)  has  had  many  fervent  advocates 
among  Indian  functionaries,  and  has  very  lately  been 
carried  out  on  a  considerable  scale  in  the  newly- 
conquered  province  of  Oudh.  But  the  great  pro- 
prietors established  by  Lord  Cornwallis  were  un- 
doubtedly, with  few  exceptions,  the  tax-gatherers  of 
the  former  Mahometan  viceroy.  The  recoil  from  what 
was  soon  recognised  as  a  mistake,  brought  a  system 
into  fashion  which  had  been  tried  on  a  small  scale 
at  an  earlier  date,  and  which  was  in  fact  the  reverse 
of  Lord  Cornwallis's  experiment.  In  the  southern 
provinces  of  the  peninsula,  the  English  Government 
began  to  recognise  nothing  between  itself  and  the 
immediate  cultivators  of  the  soil  ;  and  from  them  it 
took  directly  its  share  of  the  produce.  The  effect 
was  to  create  a  peasant- proprietary.  This  system,  of 
which  the  chief  seat  was  the  province  of  Madras,  has.  in 


106  THE   INDIAN   PROPRIETARY  UNIT.  leot.  IT, 

my  opinion,  been  somewhat  unjustly  decried.  Now  that 
it  has  been  modified  in  some  details,  and  that  some 
mistakes  first  committed  have  been  corrected,  there 
is  no  more  prosperous  population  in  India  than  that 
which  has  been  placed  under  it  ;  but  undoubtedly  it 
is  not  the  ancient  system  of  the  country.  It  was  not 
till  English  conquest  was  extending  far  to  the  north- 
west, and  till  warlike  populations  were  subjugated 
whose  tastes  and  peculiarities  it  was  urgently  neces- 
sary to  study,  that  the  true  proprietary  unit  of  India 
was  discovered.  It  has  ever  since  been  most  carefully 
and  continuously  observed.  There  have  been  many 
vehement  and  even  violent  disputes  about  some  of 
its  characteristics  ;  but  these  disputes  will  always,  I 
think,  be  found  to  arise,  or  at  least  to  derive  their 
point,  from  an  attempt  to  make  it  fit  in  with  some 
theory  of  English  origin.  There  is  no  substantial 
difference  of  opinion  about  its  great  features.  I 
regret  exceedingly  that  I  cannot  refer  you  to  any 
book  in  which  there  is  a  clear  or  compendious  account 
of  it.  Perhaps  the  best  and  most  intelligible  is  that 
given  by  a  distinguished  Indian  functionary,  Mr. 
George  Campbell,  in  that  same  volume  on  '  Systems  of 
Land  Tenure  '  to  which  I  referred  you  for  Mr.  Morier's 
summary  of  Von  Maurer's  conclusions.  But  the  de- 
scription is  necessarily  much  too  brief  for  a  subject  of 
such  extent,  and  full  information  must  be  obtained  from 
the  extensive  literature  of  Revenue  and  Settlemeiit 


lECT.  IV.  THE   INDIAN  VILLAGE.  1(«7 

which  1  spoke  of  some  time  since  as  having  had  ili 
materials  collected  by  quasi-judicial  agencies.  But 
the  student  who  attempts  to  consult  it  should  be 
warned  that  much  of  the  elementary  knowledge 
which  has  to  be  acquired  before  its  value  and  interest 
can  be  completely  understood  is  only  at  present  to  be 
gathered  from  the  oral  statements  of  experienced 
Indian  functionaries.  In  the  account  of  the  Indian 
cultivating  group  which  follows  you  will  understand 
that  I  confine  myself  to  fundamental  points,  and 
further  that  I  am  attempting  to  describe  a  typical  form 
to  which  the  village- communities  appear  to  me  upon 
the  evidence  I  have  seen  to  approximate,  rather  than 
a  model  to  which  all  existing  groups  called  by  the 
name  can  be  exactly  fitted. 

If  very  general  language  were  employed,  the 
description  of  the  Teutonic  or  Scandinavian  village- 
communities  might  actually  serve  as  a  description  of 
the  same  institution  in  India.  There  is  the  arable 
mark,  divided  into  separate  lots  but  cultivated 
according  to  minute  customary  rules  binding  on  all. 
Wherever  the  climate  admits  of  the  finer  grass  crops, 
there  are  the  reserved  meadows,  lying  generally  on 
the  verge  of  the  arable  mark.  There  is  the  waste  or 
common  land,  out  of  which  the  arable  mark  has  been 
cut,  enjoyed  as  pasture  by  all  the  community  yra 
indiviso.  There  is  the  village,  consisting  of  habita- 
tions each  ruled  by  a  despotic  pater-familias.     Anc?- 


a08  the  cultivated  land.  leci.  rv 

there  is  constantly  a  council  of  government  to  deter- 
mine disputes  as  to  custom.  But  there  are  seme 
characteristics  of  the  institution  of  which  no  traces, 
or  very  faint  traces,  remain  in  Europe,  though  they 
probably  once  existed,  and  there  are  some  differences 
between  the  European  and  Indian  examples.  Iden- 
tity in  the  main  being  assumed,  a  good  deal  of 
instruction  may  be  obtained  from  these  distinctions 
of  detail. 

First  as  to  the  arable  mark,  or  cultivated  portion  of 
the  village  domain.  Here  you  will  naturally  expect 
the  resemblances  to  be  general  rather  than  specific. 
The  official  publications  on  Indian  Settlement  law 
contain  evidence  that  in  some  parts  of  the  country 
the  division  into  three  common  fields  is  to  be  found  ; 
but  I  do  not  attach  any  importance  to  the  fact,  which 
is  probably  quite  accidental.  The  conditions  of 
agriculture  in  a  tropical  country  are  so  widely 
different  from  those  which  can  at  any  period  be 
supposed  to  have  determined  cultivation  in  Northern 
and  Central  Europe  as  to  forbid  us  to  look  for  any 
resemblances  in  India,  at  once  widely  extended  and 
exact,  to  the  Teutonic  three-field  system.  Indeed, 
as  the  great  agent  of  production  in  a  tropical  country 
is  water,  very  great  dissimilarities  in  modes  of 
cultivation  are  produced  within  India  itself  by 
relative  proximity  to  running  streams  and  relative 
exposure    to    the    periodical    rain-fall.      The    truG 


LECT.  rv.  GROWTH   OF   CUSTOM.  108 

analogy  between  the  existing  Indian  and  the  ancienl 
European  systems  of  tillage  must  be  sought  in  the 
minute  but  multifarious  rules  governing  the  pro- 
ceedings of  the  cultivators ;  rules  which  in  both 
cases  have  the  same  object — to  reconcile  a  common 
plan  and  order  of  cultivation  on  the  part  of  the 
whole  brotherhood  with  the  holding  of  distinct  lots 
in  the  arable  land  by  separate  families.  The 
common  life  of  the  group  or  community  has  been  so 
far  broken  up  as  to  admit  of  private  property 
in  cultivated  land,  but  not  so  far  as  to  allow 
departure  from,  a  joint  system  of  cultivating  that 
land.  There  have  been  functionaries  servino;  the 
British  Government  of  India  who  have  had  the 
opportunity  of  actually  observing  the  mode  in  which 
rules  of  this  kind  grow  up.  Wherever  the  great 
canals  of  irrigation  which  it  has  constructed  pass 
through  provinces  in  which  the  system  of  village- 
communities  survives  in  any  completeness,  the 
Government  does  not  undertake — or  perhaps  I  should 
rather  say  it  has  not  hitherto  undertaken — the 
detailed  distribution  of  water  to  the  peasants  inha- 
biting the  village.  It  bargains  with  them  to  take  a 
certain  quantity  of  water  in  return  for  a  certain 
addition  to  the  revenue  assessed  upon  them,  and 
leaves  them,  when  the  water  has  once  been  conducted 
to  the  arable  mark,  to  divide  it  between  themselves 
as   they   please.     A   number    of    minute   rules   for 


110  WATER    RULES.  LECT.  la. 

regulating  each  man's  share  of  the  water  and  mode  oi 
using   it   are   then   imposed  on  the  village,  by  the 
council  of  elders,  by  the  elective  or  hereditary  func- 
tionary   who    sometimes   takes  its  place,  or  by  the 
person   who   represents   the   community  in  its  con- 
tracts  with  Government   for  payment  of  land-rent. 
I  have  been  told,  however,  by  some   of  those  who 
have   observed   the   formation   of  these   rules,  that 
they  do  not  purport  to  emanate  from  the  personal 
authority  of  their  author  or  authors  ;  nor  do  they 
assume  to  be  dictated  by  a  sense  of  equity  ;  there  is 
always,  I  am  assured,  a  sort  of  fiction,  under  which 
some    customs   as  to  the  distribution   of  water  are 
supposed  to  have  existed  from  all  antiquity,  although 
in  fact  no  artificial  supply  had  been  even  so  much  as 
thought  of.     It  is  further  stated  that,  though  it  is 
extremely  common  among  English  functionaries  to 
speak  of  the  distribution  of  water  as  regulated  by  the 
agreement  of  the  villagers,  yet  no  such  idea  really 
enters  the  mind  of  the  community  or  of  its  represen- 
tatives as  that  there  can  be  or  ought  to  be  an  express 
or  implied  contract  among  the  cultivators  respecting 
their  several  shares.     And  it  is  added  that,  rather 
than  have  a  contract  or  agreement,  it  would  appear 
to  them  a,  much  more  natural  and  reasonable  arrange- 
ment that  the  distribution  should  be  determined  by 
casting  lots.     Authority,  Custom,  or  Chance   are  in 
fact  the  great  sources  of  law  in  primitive  communi- 


LTiCT.  IV.  THE    SOURCES    OF   PRIMITIVE   LAW.  Ill 

ties  as  we  know  them,  not  Contract.  Not  that  in  the 
minds  of  men  who  are  at  this  stage  of  thought  the 
acknowledged  sources  of  law  are  clearly  discrimi- 
nated. There  are  many  customary  duties  of  which 
the  most  plausible  account  that  can  be  given  is  that 
they  were  at  the  outset  obligations  of  kinship, 
sanctioned  by  patriarchal  authority  ;  yet  childish 
stories  attributing  their  origin  to  mere  accident  are 
often  current  among  the  Indian  villagers,  or  they  are 
said  to  be  observed  in  obedience  to  the  order  of  some 
comparatively  modern  king.  I  have  already  said 
that  the  power  of  the  sovereign  to  create  custom  is 
very  generally  recognised  in  India  ;  and  it  might 
even  be  said  that  such  ideas  of  the  obligatory  force 
of  agreement  as  exist  are  nowadays  greatly  mixed 
up  with  the  notion  of  obedience  to  government.  It 
is  often  stated  that  an  agreement  written  on  the 
stamped  paper  of  the  State  acquires  in  the  native 
view  a  quality  which  is  quite  independent  of  the 
legal  operation  of  the  stamp ;  and  there  is  reason  to 
believe  that  the  practice,  which  prevails  through 
whole  provinces,  of  never  performing  an  agreement 
tiU  performance  has  been  decreed  by  a  Court,  is  to  a 
very  great  extent  accounted  for  by  an  impression 
that  contracts  are  not  completely  binding  till  the 
State  has  directed  them  to  be  executed. 

Among  the  non-Aryan  peasantry  who  form  a  con- 
siderable proportion  of  the    population   in   the  still 


112  CUSTOMS   OF   RE-PAETITIOX.  lect.  it 

thinly  peopled  territory  called  the  Central  Provinces, 
the  former  highroad  of  Mahratta  brigandage,  there 
are  examples  of  the  occasional  removal  of  the  entire 
arable  mark  from  one  part  of  the  village  domain  to 
another,  and  of  the  periodical  redistribution  of  lots 
within  the  cultivated  area.  But  I  have  not  obtained 
information  of  any  systematic  removal,  and  still  less 
of  any  periodical  re-partition  of  the  cultivated  lands, 
when  the  cultivators  are  of  Aryan  origin.  But  ex- 
perienced Indian  officials  have  told  me  that  though 
the  practice  of  redistribution  may  be  extinct,  the 
tradition  of  such  a  practice  often  remains,  and  the 
disuse  of  it  is  sometimes  complamed  of  as  a  grievance. 
If  English  influence  has  had  anything  to  do  with 
arresting  customs  of  re-partition,  which  are,  no  doubt, 
quite  alien  to  English  administrative  ideas,  it  is  a 
fresh  example  of  destructive  influence,  unwillingly 
and  unconsciously  exercised.  For  the  separate,  un- 
changeable, and  irremovable  family  lot  in  the  culti- 
vated area,  if  it  be  a  step  forwards  in  the  history  of 
property,  is  also  the  point  at  which  the  Indian  village- 
community  is  breaking  to  pieces.  The  probability, 
however,  is  that  the  causes  have  had  their  operation 
much  hastened  by  the  English,  but  have  not  been 
created  by  them.  The  sense  of  personal  right  grow- 
ing everywhere  into  greater  strength,  and  the  ambi 
tion  which  points  to  wider  spheres  of  action  than  can 
be  found  within  the  Community,  are  both  destructive 


LECT.  rv.  THE   TILLAGE.  113 

of  the  authority  of  its  internal  rules.  Even  more 
fatal  is  the  increasing  feeling  of  the  sacredness  of 
personal  obligation  arising  out  of  contract.  The  par- 
tition of  inheritances  and  execution  for  debt  levied 
on  land  are  destroying  the  communities — this  is  the 
formula  heard  nowadays  everywhere  in  India.  The 
brotherhood  of  the  larger  group  may  still  cohere,  but 
the  brethren  of  some  one  family  are  always  wishing 
to  have  their  shares  separately;  and  creditors  who 
would  have  feared  to  intrude  on  the  village  domain 
now  break  the  net  of  custom  by  stepping  without 
ceremony  into  the  lot  of  a  defaulting  debtor. 

I  now  pass  to  the  village  itself,  the  cluster  of  home- 
steads inhabited  by  the  members  of  the  community. 
The  description  given  by  Maurer  of  the  Teutonic  Mark 
of  the  Township,  as  his  researches  have  shown  it  to 
him,  might  here  again  pass  for  an  account,  so  far  as 
it  goes,  of  an  Indian  village.  The  separate  households, 
each  despotically  governed  by  its  family  chief,  and 
never  trespassed  upon  by  the  footstep  of  any  person 
of  different  blood,  are  all  to  be  found  there  in  practice ; 
although  the  theory  of  the  absolute  rights  of  heads  of 
families  has  never,  from  the  nature  of  the  case,  been 
acknowledged  by  the  British  Government.  But  the 
Indian  villages  have  one  characteristic  which  could 
only  have  been  gathered  from  observation  of  a  living 
society.  The  German  writers  have  been  struck  with 
that  complete  immunity  of  the  Teutonic  homestead 

I 


114  SECRECY    OF    FAMILY    LIFE.  lect.  iy, 

from  all  external  interference,  which  in  this  country 
found  a  later  expression  in  the  long-descended 
common-place  that  an  Englishman's  house  is  his 
castle.  But  a  characteristic  which  in  India  goes 
along  with  this  immunity,  and  to  a  great  extent 
explains  it,  is  the  extraordinary  secrecy  of  family 
life  ;  a  secrecy  maintained,  I  am  told,  in  very  humble 
households  and  under  difficulties  which  at  first  sight 
would  seem  insurmountable.  There  can  be  no  ques- 
tion that,  if  the  isolation  of  households  in  ancient 
societies  was  always  accompanied  by  this  secrecy  of 
their  interior  life,  much  which  is  not  quite  intelli- 
gible in  early  legal  history  would  be  explained.  It 
is  not,  for  example,  easy  to  understand  the  tardiness 
with  which,  in  Roman  society,  the  relations  of  Pater- 
familias and  Filius-familias  became  the  subject  of 
moral  judgment,  determining  the  interference  of  the 
Praetor,  or  again  taking  the  form  of  public  opinion, 
and  so  ultimately  issuing  in  legislation.  But  this 
would  be  much  more  comprehensible  if  the  secrets 
of  family  life  were  nearly  as  carefully  guarded  as 
they  are  at  this  moment,  even  in  those  parts  of 
India  where  the  pecuhar  Mahometan  jealousy,  which 
has  sometimes  been  erroneously  thought  a  uni- 
versal Eastern  feeling,  has  never  yet  penetrated. 
So,  again,  it  is  only  a  conjectural  explanation  of  the 
scantiness  of  ancient  systems  of  law  as  they  appear 
in  the  monuments  in  which  an  attempt  was  made- 
to     set   them     formally     forth,    that    the   lawgivej 


tBcr.  IV.       DISLIKE   OF   ENGLISH   CRIMINAL   LAW.  lit 

merely  attempted  to  fill,  so  to  speak,  the  inter- 
stices betAveen  the  families,  of  which  the  aggrega- 
tion formed  the  society.  To  the  extent  to  which 
existing  Indian  society  is  a  type  of  a  primitive  society, 
there  is  no  doubt  that  any  attempt  of  the  public  law- 
giver to  intrude  on  the  domain  reserved  to  the  legis- 
lative and  judicial  power  of  the  pater-familias  causes 
the  extremest  scandal  and  disgust.  Of  all  branches 
of  law,  criminal  law  is  that  which  one  would  suppose 
to  excite  least  resentment  by  trespassing  on  tlie  for- 
bidden limits.  Yet,  while  many  ignorant  statements 
are  constantly  made  about  the  rash  disturbance  of 
native  Indian  ideas  by  British  law  and  administration, 
there  is  really  reason  to  believe  that  a  grievance  most 
genuinely  felt  is  the  impartiality  of  that  admirable 
Penal  Code  which  was  not  the  least  achievement  of 
Lord  Macaulay's  genius,  and  which  is  undoubtedly 
destined  to  serve  some  day  as  a  model  for  the  crimi- 
nal law  of  England.  I  have  had  described  to  me  a 
collection  of  street- songs,  sung  in  the  streets  of  the 
city  which  is  commonly  supposed  to  be  most  impa- 
tient of  British  rule  by  persons  who  never  so  much 
as  dreamed  of  having  their  words  repeated  to  an  Eng- 
lishman. They  were  not  altogether  friendly  to  the 
foreign  rulers  of  the  country,  but  it  may  be  broadly 
laid  down  that  they  complained  of  nothing  which 
might  naturally  have  been  expected  to  be  the  theme 
of  complaint.     And,  without  exception,  they  declared 

I  2 


116  FICTIONS  ATTENDING   LEGISLATION.         tECi.  n 

that  life  in  India  had  become  intolerable  since  the 
English  criminal  laws  had  begun  to  treat  women  and 
children  as  if  they  were  men. 

I  read  to  you  from  Mr.  Morier's  compendium  of 
Von  Maurer's  results,  a  passage  pointedly  contrast- 
ing the  independence  of  the  Teutonic  freeman  in 
his  homestead  and  its  appurtenances  with  his  com- 
plete subjection  to  customary  rule  when  he  cultivated 
the  arable  mark,  or  pastured  his  sheep  and  cattle  in 
the  common  mark.  I  trust  there  is  no  presumption 
in  my  saying  that  in  some  of  the  most  learned  writers 
on  the  Mark,  there  seems  to  me  too  great  a  tendency 
to  speak  of  the  relations  of  the  free  chiefs  of  Teutonic 
households  to  one  another  as  determined  by  what,  for 
want  of  a  more  appropriate  term,  must  be  called  spon- 
taneous legislation.  It  is  no  doubt  very  difficult,  in 
observing  an  Indian  village-community,  to  get  rid  of 
the  impression  that  the  council  of  elders,  which  is  the 
only  Indian  counterpart  of  the  collective  assembly  of 
Teutonic  villagers,  occasionally  legislates ;  and,  if 
very  strict  language  be  employed,  legislation  is  the 
only  term  properly  expressing  the  invention  of  cus- 
tomary rules  to  meet  cases  which  are  really  new.  Yet, 
if  I  may  trust  the  statements  of  several  eminent 
Indian  authorities,  it  is  always  the  fact  or  the  fiction 
that  this  council  merely  declares  customary  law.  And 
indeed,  while  it  is  quite  true  of  India  that  the  head 
:>f  the  family  is  supposed  to  be  chief  of  the  household 


user.  IV.  VILLAGE   RULES.  117 

the  families  within  the  village  or  township  would 
seem  to  be  bound  together  through  their  representa- 
tive heads  by  just  as  intricate  a  body  of  customary 
rules  as  they  are  in  respect  of  those  parts  of  the 
village  domain  which  answer  to  the  Teutonic  common 
mark  and  arable  mark.  The  truth  is,  that  nothing 
can  be  more  complex  than  the  customs  of  an  Indian 
village,  though  in  a  sense  they  are  only  binding  on 
chiefs  of  families.  The  examination  of  these  customs, 
which  have  for  their  object  to  secure  a  self-acting  or- 
ganisation not  only  for  the  community  as  a  whole,  but 
for  the  various  trades  and  callings  which  fractions  of 
it  pursue,  does  not  fall  within  the  scope  of  the  present 
Lectures,  but  it  is  a  subject  full  of  interest.  I  observe 
that  recent  writers  are  dissatisfied  with  the  historical 
theory  which  attributes  the  municipal  institutions 
of  mediaeval  Europe  to  an  exclusively  Roman  origin, 
and  that  they  are  seeking  to  take  into  account  the 
usages  inherited  from  the  conquerors  of  the  Empire. 
From  this  point  of  view,  the  customary  rules 
securing  the  interdependence  and  mutual  responsi- 
bility of  the  members  of  an  Indian  village-commu- 
nity, or  of  the  various  subordinate  groups  which  it 
may  be  shown  to  include,  and  the  modes  of  speech 
m  use  among  them,  which  are  said  to  fluctuate 
between  language  implying  an  hereditary  brotherhood 
and  language  implying  a  voluntary  association,  appear 
to  be  worthy  of  careful  examination.     There  is  reason 


118  ORIGIN   OF   INDIAN   TOWNS.  lect.  r? 

to  believe  that  some  European  cities  were  originally 
nothing  more  than  the  township-mark  of  a  Teu« 
tonic  village-community  which  has  subsequently 
grown  to  greatness.  It  is  quite  certain  that  this  vras 
the  origin  of  the  large  majority  of  the  towns  which 
you  see  marked  on  the  map  of  India.  The  village,  in 
becoming  more  populous  from  some  cause  or  other, 
has  got  separated  from  its  cultivated  or  common  do- 
main ;  or  the  domain  has  been  swallowed  up  in  it ;  or 
a  number  of  different  villages  have  been  founded  close 
together  on  what  was  perhaps  at  one  time  unprofit- 
able waste  land,  but  which  has  become  exceptionally 
valuable  throu2:h  advantao;es  of  situation.  This  last 
was  the  origin  of  the  great  Anglo-Indian  city  of  Cal- 
cutta, which  is  really  a  collection  of  villages  of  verv 
modern  foundation.  Here,  however,  it  may  be 
proper  that  I  sliould  state  that  the  very  greatest 
Indian  cities  had  a  beginning  of  another  kind. 
Doubtless  most  of  the  Indian  towns  grew  out  of  vil- 
lages, or  were  originally  clusters  of  villages,  but  the 
most  famous  of  all  grew  out  of  camps.  The  Mogul 
Emperors  and  the  Kings  of  the  more  powerful  Hindoo 
dynasties  differed  from  all  known  sovereigns  of  the 
Western  World,  not  only  in  the  singular  indefiniteness 
of  the  boundaries  of  their  dominions  and  in  the  per- 
petual belligerency  which  was  its  consequence,  but  in 
the  vast  onerousness  of  their  claims  on  the  industry 
of  their  subjects.     From  the  people  of  a  .country  of 


tECT.  IT.  INDIAN  CAPITALS.  113 

which  the  wealth  was  almost  exclusively  agricultural, 
they  took  so  large  a  share  of  the  produce  as  to  leave 
nothing  practically  to  the  cultivating  groups  except 
the  bare  means  of  tillage  and  subsistence.  Nearly  all 
the  movable  capital  of  the  empire  or  kingdom  was 
at  once  swept  away  to  its  temporary  centre,  which 
became  the  exclusive  seat  of  skilled  manufacture  and 
decorative  art.  Every  man  who  claimed  to  belong  to 
the  higher  class  of  artificers  took  his  loom  or  his 
tools  and  followed  in  the  train  of  the  King.  This 
diversion  of  the  forms  of  industry  which  depend  on 
movable  wealth  to  the  seat  of  the  court  had  its  first 
result  in  the  splendour  of  Oriental  capitals.  But  at 
the  same  time  it  made  it  easier  to  change  their  site, 
regarded  as  they  continued  to  be  in  the  light  of  the 
encampment  of  the  sovereign  for  the  time  being. 
Great  deserted  cities,  often  in  close  proximity  to  one 
another,  are  among  the  most  striking  and  at  first 
sight  the  most  inexplicable  of  Indian  spectacles. 
Indian  cities  were  not,  however,  always  destroyed  by 
the  caprice  of  the  monarch  who  deserted  them  to 
found  another  capital.  Some  peculiar  manufacture 
had  sometimes  so  firmly  established  itself  as  to 
survive  the  desertion,  and  these  manufacturing  towns 
sometimes  threw  out  colonies.  Capitals,  ex-capitals 
retaining  some  special  art  or  manufacture,  the  colo- 
nies of  such  capitals  or  ex-capitals,  villages  groTvn 
to  exceptional  greatness,   and  a  certain  number  of 


120  THE   VILLAGE   WASTE.  iect.  it 

towns  which  have  sprung  up  round  the  temples 
built  on  sites  of  extraordinary  sacredness,  would  go 
far  to  complete  the  list  of  Indian  cities. 

The  Wnste  or  common  land  of  the  Village- Com- 
munity has  still  to  be  considered.  One  point  of 
difference  between  the  view  taken  of  it  in  the  East 
and  that  which  seems  at  all  times  to  have  been  taken 
in  Europe,  deserves  to  be  specially  noted.  The 
members  of  the  Teutonic  community  appear  to  have 
valued  the  village  waste  chiefly  as  pasture  for  their 
cattle,  and  possibly  may  have  found  it  so  profitable 
for  this  purpose  as  to  have  deliberately  refrained  from 
increasing  that  cultivated  portion  of  it  which  had  been 
turned  into  the  arable  mark.  These  rights  of  pasture 
vested  in  the  commoners  are  those,  I  need  scarcely 
tell  you,  which  have  descended  but  little  modified  to 
our  own  day  in  our  own  country ;  and  it  is  only  the 
modern  improvements  in  the  methods  of  agriculture 
which  have  disturbed  the  balance  between  pasture 
and  tillage,  and  have  thus  tended  to  multiply  Iiiclo- 
sure  Acts.  But  the  vast  bulk  of  the  natives  of  India 
are  a  grain  and  not  a  flesh-eating  people.  Cattle  are 
mostly  regarded  by  them  as  auxiliary  to  tillage.  The 
view  therefore  generally  taken  (as  I  am  told)  of  the 
common-land  by  the  community  is  that  it  is  that  part 
of  the  village -domain  which  is  temporarily  unculti- 
vated, but  which  will  some  time  or  other  be  cultivated 
and  merge  in  the  arable  mark.     Doubtless  it  is  valued 


CECT.  IV.  THE   INDIAN   WASTES.  123 

for  pasture,  but  it  is  more  especially  valued  as  poten- 
tially capable  of  tillage.  The  effect  is  to  produce  in 
the  community  a  much  stronger  sense  of  property  in 
common-land  than  at  all  reflects  the  vaguer  feeling 
of  right  which,  in  England  at  all  events,  characterises 
the  commoners.  In  the  later  days  of  the  East  India 
Company,  when  all  its  acts  and  omissions  were  \"ery 
bitterly  criticised,  and  amid  the  general  re-opening 
of  Indian  questions  after  the  military  insurrection  of 
1857,  much  stress  was  laid  on  the  great  amount  of 
waste  land  which  official  returns  showed  to  exist  in 
India,  and  it  was  more  than  hinted  that  better 
government  would  bring  these  wastes  under  cultiva- 
tion, possibly  under  cotton  cultivation,  and  even  plant 
them  with  English  colonists.  The  answer  of  expe- 
rienced Indian  functionaries  was  that  there  was  no 
waste  land  at  all  in  India.  If  you  except  certain 
territories  which  stand  to  India  Proper  much  as  the 
tracts  of  land  at  the  base  of  the  Rocky  Mountains 
stand  to  the  United  States — as,  for  example,  the 
Indo-Chinese  province  of  Assam — the  reply  is  sub 
stantially  correct.  The  so-called  waste  lands  are  part 
of  the  domain  of  the  various  communities  which  the 
villagers,  theoretically,  are  only  waiting  opportunity 
to  bring  under  cultivation.  Yet  this  controversy 
elicited  an  admission  which  is  of  some  historical 
interest.  It  did  appear  that,  though  the  native  Indian 
Government  had  for  the  most  part  left  the  village* 


122  THE   GOVERNMENT   AND   THE   WASTES.       lect.  vt 

communities  entirely  to  themselves  on  condition  ol 
their  paying  the  revenue  assessed  upon  them,  they 
nevertheless  sometimes  claimed  (though  in  a  vague 
and  occasional  way)  some  exceptional  authority  over 
the  wastes;  and,  acting  on  this  precedent,  the  British 
Government,  at  the  various  settlements  of  Land 
Revenue,  has  not  seldom  interfered  to  reduce  excessive 
wastes  and  to  re-apportion  uncultivated  land  among 
the  various  communities  of  a  district.  In  connection 
with  this  claim  and  exercise  of  right  you  will  call  to 
mind  the  power  vested  in  the  early  English  Kings 
to  make  grants  of  waste  to  individuals  in  severalty, 
first  with  and  afterwards  without  the  consent  of  the 
Witan  ;  and  we  shall  see  that  the  much  more  exten- 
sive rights  acquired  by  the  lord  over  the  waste  than 
over  any  other  portion  of  the  village-domain,  consti- 
tute a  point  of  capital  importance  in  the  process  known 
as  the  feudalisation  of  Europe. 

India  has  nothing  answering  to  the  assembly  of 
adult  males  which  is  so  remarkable  a  feature  of  the 
ancient  Teutonic  groups,  except  the  Council  of  Tillage 
Elders.  It  is  not  universally  found.  Villages  fre- 
quentl)'  occur  in  which  the  affairs  of  the  community 
are  managed,  its  customs  interpreted,  and  the  disputes 
of  its  members  decided  by  a  single  Headman,  whose 
office  is  sometimes  admittedly  hereditary  but  is  some- 
times described  as  elective ;  the  choice  being  generally, 
however,  in  the  last  case  confined  in  practice  to  the 


LECT.  rv.  THE    VILLAGE    COUNCIL.  iSJS 

members  of  one  particular  family,  with  a  strong  pre- 
ference for  the  eldest  male  of  the  kindred,  if  he  be  not 
specially  disqualified.  But  I  have  good  authority  for 
saying  that,  in  those  parts  of  India  in  which  the 
village-community  is  most  perfect  and  in  which 
there  are  the  clearest  signs  of  an  original  pro 
prietary  equality  between  all  the  families  composing 
the  group,  the  authority  exercised  elsewhere  by  the 
Headman  is  lodged  with  the  Village  Council.  It 
is  always  viewed  as  a  representative  body,  and  not 
as  a  body  possessing  inherent  authority,  and,  what- 
ever be  its  real  number,  it  always  bears  a  name 
which  recalls  its  ancient  constitution  of  Five  persons. 
I  shall  have  hereafter  to  explain  that,  though  there 
are  strong?  fijeneral  resemblances  between  the  Indian 
village-communities  wherever  they  are  found  in  any- 
thing like  completeness,  they  prove  on  close  inspec- 
tion to  be  not  simple  but  composite  bodies,  including 
a  number  of  classes  with  very  various  rights  and 
claims.  One  singular  proof  of  this  variety  of  in- 
terests, and  at  the  same  time  of  the  essentially  re- 
presentative character  of  the  village  council,  is  con- 
stantly furnished,  I  am  told,  by  a  peculiar  difficulty 
of  the  Anglo-Indian  functionary  when  engaged  in 
'  settling  '  a  province  in  which  the  native  condition  of 
society  has  been  but  little  broken  up.  The  village 
council,  if  too  numerous,  is  sure  to  be  unmanageable ; 
but  there  is  great  pressure  from  all  sections  of  the 


124  PEACEFUL   CHAEACTER   OF   POPULATION,      lecx.  i». 

community  to  be  represented  in  it,  and  it  is  practically 
hard  to  keep  its  numbers  down.  The  evidence  of  the 
cultivators  as  to  custom  does  not  point,  I  am  told,  to 
any  uniform  mode  of  representation ;  but  there 
appears  to  be  a  general  admission  that  the  members  of 
the  council  should  be  elderly  men.  No  example 
of  village  or  of  district  government  recalling  the 
Teutonic  assembly  of  free  adult  males  has  been 
brought  to  my  notice.  While  I  do  not  afreet  to  give 
any  complete  explanation  of  this,  it  may  be  proper  to 
remember  that,  though  no  country  was  so  perpetually 
scourged  with  war  as  India  before  the  establishment 
of  the  Pax  Britannica,  the  people  of  India  were  never 
a  military  people.  Nothing  is  told  of  them  resem- 
bling that  arming  of  an  entire  society  which  was  the 
earliest,  as  it  is  the  latest,  phase  of  Teutonic  history. 
No  rule  can  be  laid  down  of  so  vast  a  population 
without  exceptions.  The  Mahratta  brigands  when 
they  first  rose  against  the  Mahometans  were  a  Hindoo 
Hill-tribe  armed  to  a  man;  and  before  the  province 
of  Oudh  was  annexed,  extreme  oppression  had  given 
an  universally  military  character  to  a  naturally  peaceful 
population.  But,  for  the  most  part,  the  Indian  village- 
communities  have  always  submitted  mthout  resist- 
ance to  oppression  by  monarchs  surrounded  by  mer- 
cenary armies.  The  causes,  therefore,  which  in 
primitive  societies  give  importance  to  young  men  in 
the  village  assembly  were  wanting.     The  soldiers  of 


^CT.  IT.  HEREDITAKY   TRADES.  125 

the  community  had  gone  abroad  for  mercenary  service, 
and  nothing  was  required  of  the  council  but  experience 
and  civil  wisdom. 

There  is  yet  another  feature  of  the  Indian  culti- 
vating groups  which  connects  them  with  primitive 
Western  communities  of  the  same  kind.  I  have 
several  times  spoken  of  them  as  organised  and  self- 
acting.  They,  in  fact,  include  a  nearly  complete 
establishment  of  occupations  and  trades  for  enabling 
them  to  continue  their  collective  life  without  assist- 
ance from  any  person  or  body  external  to  them. 
Besides  the  Headman  or  Council  exercising  quasi- 
judicial,  quasi-legislative,  power,  they  contain  a  village 
police,  now  recognised  and  paid  in  certain  provinces 
by  the  British  Government.  They  include  several 
families  of  hereditary  traders;  the  Blacksmith,  the 
Harness-maker,  the  Shoemaker.  The  Brahmin  is 
also  found  for  the  performance  of  ceremonies,  and 
even  the  Dancing-Girl  for  attendance  at  festivities. 
There  is  invariably  a  Village- Accountant,  an  impor- 
tant personage  among  an  unlettered  population—  so 
important,  indeed,  and  so  conspicuous  that,  according 
to  reports  current  in  India,  the  earliest  English 
functionaries  engaged  in  settlements  of  land  were 
occasionally  led  by  their  assumption  that  there  must 
be  a  single  proprietor  somewhere,  to  mistake  the 
Accountant  for  the  owner  of  the  village,  and  to  record 
him  as  such  in  the  official  register.      But  the  person 


126  REMUNERATION   OF  VILLAGE   TRADERS.      lect.  tv 

practising  any  one  of  these  hereditary  employments 
is  really  a  servant  of  the  community  as  well  as  one  of 
its  component  members.  He  is  sometimes  paid  by  an 
allowance  in  grain,  more  generally  by  the  allotment 
to  his  family  of  a  piece  of  cultivated  land  in  hereditary 
possession.  Whatever  else  he  may  demand  for  the 
wares  he  produces,  is  limited  by  a  customary  stan- 
dard of  price,  very  rarely  departed  from.  It  is  the 
assignment  of  a  definite  lot  in  the  cultivated  area  to 
particular  trades,  which  allows  us  to  suspect  that  the 
early  Teutonic  groups  were  similarly  self-sufficing. 
There  are  several  English  parishes  in  which  certain 
pieces  of  land  in  the  common  field  have  from  time 
immemorial  been  known  by  the  name  of  a  particular 
trade;  and  there  is  often  a  popular  belief  that 
nobody,  not  following  the  trade,  can  legally  be  owner 
of  the  lot  associated  with  it.  And  it  is  possible  that 
we  here  have  a  key  to  the  plentifulness  and  persist- 
ence of  certain  names  of  trades  as  surnames  among 
us. 

It  is  a  remarkable  fact  that  certain  callings,  ex- 
tremely respectable  and  lucrative,  do  not  appear  in 
India  to  constitute  those  who  follow  them  mem- 
bers of  the  village- community.  Eminent  officials 
have  assured  me  that,  so  far  as  their  experience  ex- 
tends, the  Grain-dealer  is  never  a  hereditary  trader 
incorporated  with  the  village  group,  nor  is  he  a 
member  of   the  municipality  in  towns  which   have 


LECT.  IT.  THE   OUTSIDERS.  127 

grown  out  of  one  or  more  villages.  The  trades  thus 
remaining  outside  the  organic  group  are  those 
which  bring  their  goods  from  distant  markets ; 
and  I  shall  try  to  show  the  significance  of  this  fact 
hereafter. 

There  are  in  Central  and  Southern  India  certain 
villages  to  which  a  class  of  persons  is  hereditarily  at- 
tached in  such  a  manner  as  to  show  most  unmistake- 
ably  that  they  form  no  part  of  the  natural  and  organic 
aggregate  to  which  the  bulk  of  the  villagers  belong. 
These  persons  are  looked  upon  as  essentially  impure; 
they  never  enter  the  village,  or  only  enter  reserved 
portions  of  it ;  and  their  touch  is  avoided  as  con- 
taminating. It  is  difficult  to  read  or  listen  to  the 
accounts  given  of  them  without  having  the  mind 
carried  to  those  singular  races  or  classes  which,  in 
certain  European  countries,  were  supposed  almost  to 
our  own  day  to  transmit  from  father  to  son  the  taint 
of  a  mysterious  uncleanness.  Yet  these  Indian 
'outsiders,'  as  they  have  been  called  (by  Sir  H.  B. 
Frerein  'The  Church  and  the  Age,  'p.  357),  toavoid 
using  the  word  '  outcast,'  which  has  a  different 
meaning,  bear  extremely  plain  marks  of  their  origin. 
Though  they  are  not  included  in  the  village,  they 
are  an  appendage  solidly  connected  with  it;  they 
have  definite  village  duties,  one  of  which  is  the 
settlement  of  boundaries,  on  which  their  authority  is 
allowed  to  be  conclusive.     They  evidently  represent 


128      ABSORPTION   OP  STRANGERS   BY  COMMUNITY,    leci.  it 

a  population  of  alien  blood,  whose  lands  have 
been  occupied  by  the  colonists  or  invaders  forming 
the  community.  Everybody  who  has  used  his  eyes 
in  India  will  be  on  his  guard  against  certain  ex- 
travagances of  the  modern  theory  of  Race,  and  will 
be  slow  to  believe  that  identity  of  language  and 
identity  of  religion  necessarily  imply  identity  of  eth- 
nical origin.  The  wonderful  differences  of  external 
aspect  which  are  readily  perceived  between  natives 
of  Indian  provinces  speaking  the  same  language,  and 
the  great  deviation  from  what  is  regarded  as  the 
Aryan  type  of  form  and  feature  observable  among 
populations  whose  speech  is  a  near  derivative  from 
Sanscrit,  have  their  most  reasonable  explanation  in 
the  power  of  absorption  which  the  village  group 
may  from  many  indications  be  inferred  to  have 
possessed  in  the  earlier  stages  of  development.  But 
the  faculty  of  taking  in  strangers  from  without  is 
one  which  it  loses  in  time,  and  there  were  always 
probably  some  materials  too  obstinately  and  obtru- 
sively foreign  to  be  completely  absorbed.  Under 
this  last  head,  the  '  outsiders '  of  the  Southern  vil- 
lages apparently  fall. 


LECTUBE    y, 

THE  PEOCESS  OF  TEUDALISATION. 


CONTENTS, 

Feudalism — The  Benefices — The  Manor — The  Manorial  Group- 
New  Condition  of  the  Waste — Changes  in  the  Grass-lands — The 
Free  Tenants — Settlements  of  Villeins — The  Manorial  Courts — 
Encroachments  of  the  Lord — Roman  and  Feudal  Law — Causes  of 
Feudalisation — Growth  of  Suzerainties — Leading  Families — 
Elements  of  Feudal  System — Systematic  Feudalism — Antiquarian- 
ism  of  Indian  Politics — Political  Results  of  Settlements — Various 
Forms  of  Settlement — Growth  in  Power  of  Official  Holder — 
Mahometan  Assumptions — Indian  Schools  of  Opinion — Indian 
Forms  of  Property — The  Headman — Property  Recognised  by  the 
English — Absolute  Ownership — Nature  of  Rights  of  Property — 
Development  of  Absolute  Ownership — Vested  Rights  in  India — 
The  Feudalisation  of  Europe — Cultivation  of  Waste-land — Im- 
provements in  Tillage — ^Village- Communities  and  Customs — 
Customary  Tillage — Servile  Dependants  of  Villagers — ^Villages 
Cease  to  Absorb  Strangers — Nasse's  Work — The  Statute  of 
Devises — Rules  for  Construing  Wills — Restraints  on  Testamentary 
Power. 


LECTURE  V. 

THE    PROCESS    OF   FEUDALISATION. 

The  student  of  legal  antiquities  who  has  once  con- 
vinced himself  that  the  soil  of  the  greatest  part  of 
Europe  was  formerly  owned  and  tilled  by  proprietary 
groups,  of  substantially  the  same  character  and  com- 
position as  those  which  are  still  found  in  the  only 
parts  of  Asia  which  are  open  to  sustained  and  care- 
ful observation,  has  his  interest  immediately  drawn 
to  what,  in  truth,  is  the  great  problem  of  legal  history. 
This  is  the  question  of  the  process  by  which  the  pri- 
mitive mode  of  enjoyment  was  converted  into  the 
agrarian  system,  out  of  which  immediately  grew  the 
land-law  prevailing  in  all  Western  Continental  Europe 
before  the  first  French  Revolution,  and  from  wliich 
is  demonstrably  descended  our  own  existing  real- 
property  law.  For  this  newer  system  no  name  has 
come  into  general  use  except  Feudalism,  a  word  which 
has  the  defect  of  calling  attention  to  one  set  only  of 
its  characteristic  incidents.  We  cannot  reasonably 
doubt  that  one  partial  explanation  of  its  origin  is,  so 
fer  as  it  goes,  correct.     It  arose  from  or  was  greatlj^ 


132  THE  BENEFICES.  lect.  v, 

influenced  by  the  Benefices,  grants  of  Roman  provin- 
cial land  by  the  chieftains  of  the  tribes  which  overran 
the  Roman  Empire  ;  such  grants  being  conferred  on 
their  associates  upon  certain  conditions,  of  which  the 
commonest  was  military  service.  There  is  also  toler- 
ably universal  agreement  that  somewhere  in  Roman 
law  (though  where,  all  are  not  agreed)  are  to  be 
found  the  rules  which  determined  the  nature  of  these 
beneficiary  holdmgs.  This  may  be  called  the  theory 
of  the  ofiicial  origin  of  feudalism,  the  enjoyment  of 
land  being  coupled  with  the  discharge  of  certain  de- 
finite duties  ;  and  there  are  some  who  complete  the 
theory  by  asserting  that  among  the  Teutonic  races, 
at  all  events,  there  was  an  ineradicable  tendency  in 
all  ofiices  to  become  hereditary,  and  that  thus  the 
Benefices,  which  at  first  were  held  for  life,  became  at 
last  descendible  from  father  to  son. 

There  is  no  question,  as  I  said,  that  this  account 
is  more  than  probable,  and  that  the  Benefices  either 
began  or  hastened  the  changes  which  led  ultimately 
to  feudalism.  Yet  I  think  that  nobody  whose  mind 
has  dwelt  on  the  explanation,  has  brought  himself  to 
regard  it  as  complete.  It  does  not  tell  us  how  the 
Benefices  came  to  have  so  extraordinary  a  historical 
fortune.  It  does  not  account  for  the  early,  if  partial, 
feudalisation  of  countries  like  Germany  and  England, 
where  the  cultivated  soil  was  in  the  hands  of  free  and 
fully  organised  communities,  and  was  not,  like  the 


tBCT.  V,  THE   MANOR.  138 

land  of  Italy  or  Gaul,  at  the  disposal  of  a  conquering 
king — where  the  royal  or  national  grants  which  re- 
sembled the  Benefices  were  probably  made  out  of 
waste  land — and  where  the  influence  of  Roman  law 
was  feebly  felt  or  not  at  all. 

The  feudalisation  of  any  one  country  in  Europe 
must  be  conceived  as  a  process  including  a  long  series 
of  political,  administrative,  and  judicial  changes  ;  and 
there  is  some  difficulty  in  confining  our  discussion  of 
it  to  changes  in  the  condition  of  property  which  be- 
long more  properly  to  this  department  of  study.  But 
I  think  we  may  limit  our  consideration  of  the  subject 
by  looking  at  it  in  this  way.  If  we  begin  with 
modern  English  real-property  law,  and,  by  the  help 
of  its  records  and  of  the  statutes  affecting  it,  trace  its 
history  backwards,  we  come  upon  a  period  at  which 
the  soil  of  England  was  occupied  and  tilled  by  separ- 
ate proprietary  societies.  Each  of  these  societies  is, 
or  bears  the  marks  of  having  been,  a  compact  and 
organically  complete  assemblage  of  men,  occupying  a 
definite  area  of  land.  Thus  far  it  resembles  the  old 
cultivating  communities,  but  it  differs  from  them  in 
being  held  together  by  a  variety  of  subordinate  rela- 
tions to  a  feudal  chief,  single  or  corporate,  the  Lord. 
I  will  call  the  new  group  the  Manorial  group,  and 
though  my  words  must  not  be  taken  as  strictly 
correct,  I  will  say  that  a  group  of  tenants,  autocra- 
tically   organised    and    governed,  has     succeeded    9 


134  THE   MANOEIAL   GROUP.  lecx.  v, 

group  of  households  of  which  the  organisation  and 
government  were  democratic.  The  new  group,  as 
known  to  our  law,  is  often  in  a  state  of  dissolution, 
but,  where  it  is  perfect,  it  consists  of  a  number  of 
persons  holding  land  of  the  Lord  by  free  tenures, 
and  of  a  number  of  persons  holding  land  of  the  Lord 
by  tenures  capable  of  being  shown  to  have  been,  in 
their  origin,  servile — the  authority  of  the  Lord  being 
exercised  over  both  classes,  although  in  different  ways, 
through  the  agency  of  a  peculiar  tribunal,  the  Court 
Baron.  The  lands  held  by  the  first  description  of 
tenants  are  technically  known  as  the  Tenemental 
lands  ;  those  held  by  the  second  class  constitute  the 
Lord's  Domain.  Both  kinds  of  land  are  essential  to 
the  completeness  of  the  Manorial  group.  If  there 
are  not  Tenemental  lands  to  supply  a  certain  mini- 
mum number  of  free  tenants  to  attend  the  Court 
Baron,  and,  according  to  the  legal  theory,  to  sit  with 
the  lord  as  its  judges,  the  Court  Baron  can  no  longer 
in  strictness  be  held  ;  if  it  be  continued  under  such 
circumstances,  as  it  often  was  in  practice,  it  can  only 
be  upheld  as  a  Customary  Manorial  Court,  sitting  for 
the  assessment  and  receipt  of  customary  dues  from 
the  tenants  of  the  Domain.  On  the  other  hand,  if 
there  be  no  Domain,  or  if  it  be  parted  with,  the 
authority  of  the  Lord  over  the  free  tenants  is  no  longer 
Manorial  ;  it  becomes  a  Seignory  in  gross,  or  mere 
Lordship. 


UiCT.  y.  NEW  CONDITION   OF   THE   WASTE.  186 

Since  much  of  the  public  waste  land  of  our  country 
is  known  to  have  passed  by  national  or  royal  grant  to 
individuals  or  corporations,  who,  in  all  probability, 
brought  it  extensively  under  cultivation  from  the 
first  by  servile  labour,  it  cannot  be  supposed  that 
each  of  the  new  Manorial  groups  takes  the  place  of  a 
Village  group  which  at  some  time  or  other  consisted 
of  free  allodial  proprietors.  Still,  we  may  accept 
the  belief  of  the  best  authorities  that  over  a  great 
part  of  England  there  has  been  a  true  succession  of 
one  group  to  the  other.  Comparing,  then,  the  two, 
let  us  ask  what  are  the  specific  changes  which  have 
taken  place  V  The  first,  and  far  the  most  important 
of  all,  is  that,  in  England  as  everywhere  in  Western 
Europe,  the  waste  or  common-land  of  the  community 
has  become  the  lord's  waste.  It  is  still  ancillary  to 
the  Tenemental  lands  ;  the  free  tenants  of  the  lord, 
whom  we  may  provisionally  take  to  represent  the 
freemen  of  the  village-community,  retain  all  their 
iiscertained  rights  of  pasture  and  gathering  firewood, 
and  in  some  cases  similar  rights  have  been  acquired 
by  other  classes  ;  but,  subject  to  all  ascertained  rights, 
the  waste  belongs,  actually  or  potentially,  to  the  lord's 
domain.  The  lord's  '  right  of  approvement,'  affirmed 
by  the  Statute  of  Merton,  and  extended  and  confirmed 
by  subsequent  statutes,  permits  him  to  enclose  and 
appropriate  so  much  of  the  waste  as  is  not  wanted  to 
satisfy  other  exibting  rights  ;  nor  can  it  be  doubtej 


136  CILVNGES    IN   THE    GRASS-LANDS.  lect.   v. 

that  he  largely  exercises  this  right,  reclaiming  part 
of  the  waste  for  himself  by  his  personal  dependants 
and  adding  it  to  whatever  share  may  have  belonged 
to  him  from  the  first  in  the  cultivated  land  of 
the  community,  and  colonising  other  portions  of  it 
with  settlements  of  his  villeins  who  are  on  their 
way  to  become  copyholders.  The  legal  theory  has 
altogether  departed  from  the  primitive  view ;  the  waste 
is  now  the  lord's  waste  ;  the  commoners  are  for  the 
most  part  assumed  to  have  acquired  their  rights  by 
sufferance  of  the  lord,  and  there  is  a  visible  tendency 
in  courts  and  text- writers  to  speak  of  the  lord's  rights, 
not  only  as  superior  to  those  of  the  commoners,  but 
as  being  in  fact  of  greater  antiquity. 

When  we  pass  from  the  waste  to  the  grass  lands 
which  were  intermediate  between  the  common  land 
and  the  cultivated  area,  we  find  many  varieties  in 
the  degree  of  authority  acquired  by  the  lord.  The 
customs  of  manors  differ  greatly  on  the  point.  Some- 
times, the  lord  encloses  for  his  own  benefit  from 
Candlemas  to  Midsummer  or  Lammas,  and  the 
common  right  belongs  during  the  rest  of  the  year  to 
a  class  of  burgesses,  or  to  the  householders  of  a 
village,  or  to  the  persons  inhabiting  certain  ancient 
tenements.  Sometimes,  the  lord  only  regulates  the 
inclosure,  and  determines  the  time  of  setting  up  and 
removing  the  fences.  Sometimes,  other  persons  en- 
close, and  the  lord  has  the  grass  when  the  several 


LECi.  V.  THE   FREE   TENANTS.  13J 

enjoyment  comes  to  an  end.  Sometimes,  his  right 
of  pasture  extends  to  the  baulks  of  turf  which  sepa- 
rate the  common  arable  fields  ;  and  probably  there  is 
no  manorial  ri^ht  which  in  later  times  has  been  more 
bitterly  resented  than  this,  since  it  is  practically  fatal 
to  the  cultivation  of  green  crops  in  the  arable 
soil. 

Leaving  the  meadows  and  turning  to  the  lands 
under  regular  tillage,  we  cannot  doubt  that  the  free 
holders  of  the  Tenemental  lands  correspond  in  the 
main  to  the  free  heads  of  households  composing  the 
old  village-community.  The  assumption  has  often 
been  made,  and  it  appears  to  be  borne  out  by  the 
facts  which  can  be  established  as  to  the  common 
fields  still  open  or  comparatively  lately  enclosed. 
The  tenure  of  a  certain  number  of  these  fields  is  free- 
hold ;  they  are  parcelled  out,  or  may  be  shown  to  have 
been  in  the  last  century  parcelled  out,  among  many 
different  owners  ;  they  are  nearly  always  distributed 
into  three  strips,  and  some  of  them  are  even  at  this 
hour  cultivated  according  to  methods  of  tillage  which 
are  stamped  by  their  very  rudeness  as  coming  doAvn 
from  a  remote  antiquity.  They  appear  to  be  the 
lands  of  a  class  which  has  never  ceased  to  be  free, 
and  they  are  divided  and  cultivated  exactly  as  the 
arable  mark  of  a  Teutonic  township  can  be  inferred 
by  a  large  induction,  to  have  been  divided  and  tilled 
But,  on  the  other  hand,  many  large  tracts  of  inter- 


158  SETTLEMENTS    OF    VILLEINS.  tKCT.  T, 

mixed  Ian  1  are  still,  or  were  till  their  recent  enfran- 
chisement,  copyhold  of  particular  manors,  and  some 
of  them  are  held  by  the  intermediate  tenure,  known 
as  customary  freehold,  which  is  confined  by  the  legal 
theory  to  lands  which  once  formed  part  of  the  King's 
Domain.  I  have  not  been  able  to  ascertain  the  pro- 
portion of  common  lands  held  by  these  base  tenures 
to  freehold  lands  of  the  same  kind,  but  there  is  no 
doubt  that  much  commonable  or  intermixed  land  is 
found,  which  is  not  freehold.  Since  the  descent  of 
copyhold  and  customary  freehold  tenures  from  the 
holdings  of  servile  classes  appears  to  be  well  esta- 
blished, the  frequent  occurrence  of  intermixed  lands 
of  this  nature  seems  to  bear  out  the  inference  sug- 
gested by  Sir  H.  Ellis's  enumeration  of  the  conditions 
of  men  referred  to  in  Domesday  Book,  that,  during 
the  long  process  of  feudalisation,  some  of  the  free 
villagers  sank  to  the  status,  almost  certainly  not  a 
uniform  status,  which  was  implied  in  villenage.  (  See 
also  Mr.  Freeman's  remark, '  Hist.  Norm.  Conq.'  i.  97.) 
But  evidence,  supplied  from  quarters  so  wide  apart  as 
British  India  and  the  English  settlements  in  North 
America,  leads  me  to  think  that,  at  a  time  when  a 
system  of  customary  tillage  widely  prevailed,  assem- 
blages of  people  planted  on  waste  land  would  be  likely 
to  copy  the  system  literally  ;  and  I  conjecture  that 
parts  of  the  great  wastes  undoubtedly  reclaimed 
bv  the  exercise  of  the  right  afterwards  called  the 


tBCT.  ▼.  THE   MANOKIAL    COURTS.  188 

lord's  '  right  of  approvement '  were  settled  by  servile 
colonies  modelled  on  the  ancient  Teutonic  town- 
ship. 

The  bond  which  kept  the  Manorial  group  together 
was  evidently  the  Manorial  Court,  presided  over  by 
the  lord  or  his  representative.  Under  the  name  of 
Manorial  Court  three  courts  are  usually  included, 
which  legal  theory  keeps  apart,  the  Court  Leet,  the 
Court  Baron,  and  the  Customary  Court  of  the  Manor. 
I  think  there  cannot  be  reasonable  doubt  of  the  le- 
gitimate descent  of  all  three  from  the  assembly  of  the 
Township.  Besides  the  wide  criminal  and  civil  juris- 
diction which  belonged  to  them,  and  which,  though  it 
has  been  partly  abolished,  has  chiefly  lost  its  impor- 
tance through  insensible  decay,  they  long  continued 
in  the  exercise  of  administrative  or  regulative  powers 
which  are  scarcely  distinguishable  from  legislation. 
Other  vestiges  of  powers  exerted  by  the  collective 
body  of  free  owners  at  a  time  when  the  conceptions  of 
legislative  and  judicial  authority  had  not  yet  been 
separated,  remained  in  the  functions  of  the  Leet  Jury; 
in  the  right  asserted  for  the  free  tenants  of  sitting  as 
Judges  in  the  Court  Baron ;  and  in  the  election  of 
various  petty  officers.  It  is  true  that,  as  regards  one 
of  these  Courts,  the  legal  theory  of  its  character  is  to 
a  certain  extent  inconsistent  with  the  pedigree  I  have 
claimed  for  it.  The  lawyers  have  always  contended 
that  the  Court  Leet  only  existe  J  through  the  King' 


140  THE   MANORIAL    COURTS.  llci,  v. 

grant,  express  or  implied;  and  in  pursuance  of  the 
same  doctrine  they  have  laid  down  that,  whereas  the 
lord  might  himself  sit  in  the  Court  Baron,  he  must 
have  a  person  of  competent  legal  learning  to  repre- 
sent him  in  the  Court  Leet.  But  this  only  proves 
that  the  Court  Leet,  which  was  entrusted  with  the 
examination  of  the  Frankpledge,  had  more  piiblic 
importance  than  the  other  Manorial  Courts,  and  was 
therefore  more  distinctly  brought  under  the  assump- 
tion which  had  been  gradually  forming  itself,  that 
royal  authority  is  the  fountain  of  all  justice.  Even 
in  the  last  extremity  of  decline,  the  Manorial  Courts 
have  not  wholly  ceased  to  be  regarded  as  the  tie 
which  connects  the  common  interests  of  a  definite 
group  of  persons  engaged  in  the  cultivation  of  the 
soil.  Marshall  ('  Rural  Economy  of  Yorkshire,'  i.  27) 
mentions  the  remarkable  fact  that  these  Courts  were 
sometimes  kept  up  at  the  beginning  of  the  century 
by  the  voluntary  consent  of  the  neighbourhood  in 
certain  districts  where,  from  the  disappearance  of  the 
servile  tenures  which  had  enabled  the  Customary 
Courts  to  be  continued,  the  right  to  hold  them  had 
been  forfeited.  The  manorial  group  still  sufficiently 
cohered  for  it  to  be  felt  that  some  common  authority 
was  required  to  regulate  such  matters  as  the  repair  of 
minor  roads,  the  cleansing  of  rivulets,  the  ascertain- 
ment of  the  sufficiency  of  ring-fences,  the  assessment 
of  the  damages  of  impounded  cattle,  the  removal  of 
nuisances,  and  the  stocking  of  commons. 


LBCl.  V.  ENCROACHMENTS    OF   THE   LORD.  14i 

On  the  whole,  the  comparison  of  the  Village  group 
with  the  English  group  which  I  have  called  Manorial 
rather  than  Feudal,  suggests  the  following  general 
observations.  Wherever  that  collective  ownership  of 
land  which  was  a  universal  phenomenon  in  primitive 
societies  has  dissolved,  or  gone  far  to  dissolve,  into 
individual  property,  the  individual  rights  thus  formed 
have  been  but  slightly  affected  by  the  process  of  feu- 
dalisation.  If  there  are  reasons  for  thinking  that 
some  free  village  societies  fell  during  the  process  into 
the  predial  condition  of  villenage — whatever  that 
condition  may  really  have  implied — a  compensating 
process  began  at  some  unknown  date,  under  which 
the  base  tenant  made  a  steady  approach  to  the  level 
of  the  freeholder.  Even  rights  which  savoured  of  the 
collective  stage  of  property  were  maintained  compara- 
tively intact,  provided  that  they  were  ascertained  : 
such  as  rights  of  pasture  on  the  waste  and  rights  of 
several  or  of  common  enjoyment  (as  the  case  might 
be)  in  the  grass  land.  The  encroachments  of  the  lord 
were  in  proportion  to  the  want  of  certainty  in  the 
rights  of  the  community.  Into  the  grass  land  he 
intruded  more  than  into  the  arable  land  ;  into  the 
waste  much  more  than  into  either.  The  conclusion 
suggested  to  my  mind  is  that,  in  succeeding  to  the 
legislative  power  of  the  old  community,  he  was 
enabled  to  appropriate  to  himself  such  of  its  rights  as 
were  not  immediately  valuable,  and  which,  in  the 
event  of  their  becoming  valuable,  required  legislative 


142  ROMAN    AND    FEUDAL   LAW.  leot.  t 

adjustment  to  settle  the  mode  of  enjoying  them. 
Let  me  add  that  the  general  truth  of  my  description 
of  the  character  of  the  change  which  somehow  took 
place,  is  perhaps  rei^.dered  antecedently  more  probable 
by  the  comparison  of  a  mature,  but  no n -feudal,  body 
of  jurisprudence,  like  the  Roman  law,  with  any  deeply 
feudalised  legal  system.  You  will  remember  the 
class  of  enjoyable  objects  which  the  Roman  lawyers 
call  res  iiuUius,  res  puhlici  usils^  res  omnium  or  univer- 
sorum ;  these  it  reserves  to  the  entire  community,  or 
confers  on  the  first  taker.  But,  under  feudalised  law, 
nearly  all  these  objects  which  are  capable  of  several 
enjoyment  belong  to  the  lord  of  the  manor,  or  to  the 
king.  Even  Prize  of  War,  the  most  significant  of  the 
class,  belongs  theoretically  to  the  sovereign  in  the 
first  instance.  By  a  very  singular  anomaly,  which 
has  had  important  practical  results,  Game  is  not 
strictly  private  property  under  English  law  ;  but  the 
doctrine  on  the  subject  is  traceable  to  the  later 
influence  of  the  Roman  law. 

There  must  be  a  considerable  element  of  conjec- 
ture in  any  account  which  may  be  given  of  a  series 
of  changes  which  took  place  for  the  most  part  in 
remote  antiquity,  and  which  probably  were  far  from 
uniform  either  in  character  or  in  rate  of  advance.  It 
happens,  however,  that  the  vestiges  of  the  earlier 
stages  of  the  process  of  feudalisation  are  more  dis- 
cernible in  Germany  than  elsewhere,  both  in  docu 


LECT.  V.  CAUSES   OF   FEUDALISATION.  143 

mentary  records  and  on  the  face  of  the  land;  owing 
in  part  no  doubt  to  the  comparatively  feeble  action 
of  that  superior  and  central  authority  which  has 
obliterated  or  obscured  so  much  in  our  own  country. 
A  whole  school  of  writers,  among  whom  Von  Maurer 
has  the  first  place,  has  employed  itself  in  restoring 
and  interpreting  these  traces  of  the  Past.  How  did 
the  Manor  rise  out  of  the  Mark? — this  is  their  way 
of  stating  the  problem.  What  were  the  causes  of 
indigenous  growth  which,  independently  of  grants  of 
land  by  royal  or  national  authority,  were  leading  to 
a  suzerainty  or  superiority  of  one  cultivating  com- 
munity over  another,  or  of  one  family  over  the  rest 
of  the  families  composing  the  village -community? 
The  great  cause  in  the  view  of  these  writers  was  the 
exceeding  quarrelsomeness  of  these  little  societies, 
and  the  consequent  frequency  of  intertribal  war. 
One  community  conquers  another,  and  the  spoil  of  war 
is  generally  the  common  mark  or  waste  of  the  worsted 
community.  Either  the  conquerors  appropriate  and 
colonise  part  of  the  waste  so  taken,  or  they  take  the 
whole  domain  and  restore  it  to  be  held  in  dependence 
on  the  "vdctor-society.  The  change  from  one  of  these 
systems  to  another  occurred,  you  will  remember,  in 
Roman  history,  and  constitutes  an  epoch  in  the  deve- 
lopment of  the  Koman  Law  of  Propert}^  The  effect 
of  the  first  system  on  the  Teutonic  communities  was 
inequality   of    property;     since    the    common   land 


144  GROWTH    OF   SUZERAINTIES.  lect.  i 

appropriated  and  occupied  does  not  seem  to  have  been 
equally  divided,  but  a  certain  preference  was  given  to 
the  members  of  the  successful  community  who  had 
most  effectually  contributed  to  the  victory.  Under 
the  second  system,  when  its  land  was  restored  to 
the  conquered  society,  the  superiority  over  it  which 
remained  to  the  victor,  bore  the  strongest  analogy  to 
a  suzerainty  or  lordship.  Such  a  suzerainty  was  not, 
however,  exclusively  created  by  success  in  war. 
Sometimes  a  community  possessed  of  common  land 
exceptionally  extensive  or  exceptionally  fertile  would 
send  colonies  of  families  to  parts  of  it.  Each  of  these 
new  communities  would  receive  a  new  arable  mark, 
but  such  of  the  land  as  remained  unappropriated 
would  still  be  the  common  land  of  all  the  townships. 
At  the  head  of  tliis  sort  of  confederacy  there  would, 
however,  be  the  original  mother- community  from 
which  the  colonists  proceeded,  and  there  seems  no 
doubt  that  in  such  a  state  of  things  she  claimed  a  supe- 
riority or  suzerainty  over  all  the  younger  townships. 
But,  even  if  we  had  the  fullest  evidence  of  the 
growth  of  suzerainties  in  this  inchoate  shape,  we 
should  still  have  advanced  a  very  little  way  in  trac- 
ing the  transmutation  of  tlie  village  system  into  the 
manorial  system,  if  it  were  not  for  another  phenome- 
non to  which  Landau  has  more  particularly  called 
attention.  The  Teutonic  communities,  though  their 
organisation  (if  modern  language  must  be  employed) 


lECT.  V.  LEADING   FAMILIES.  145 

can  only  be  described  as  democratic,  appear  neverthe- 
less to  have  generally  had  an  abiding  tradition  that 
in  some  one  family,  or  in  some  famihes,  the  blood 
which  ran  in  the  veins  of  all  the  ireemen  was  purest; 
probably  because  the  direct  descent  of  such  family  or 
families  from  a  common  ancestor  was  remembered  or 
beheved  in.  From  the  members  of  these  families, 
the  leader  for  a  military  expedition  would  as  a  rule 
be  chosen ;  but  as  in  this  stage  of  thought  the  different 
varieties  of  power  were  not  distinguished  from  one 
another,  the  power  acquired  by  the  chieftain  would 
be  a  combination  of  pohtical,  military,  and  judicial 
power.  The  choice  of  the  leader  would  in  great 
emergencies  be  a  true  election,  but  on  less  serious 
occasions  would  tend  to  become  an  acquiescence  in 
the  direction  of  the  eldest  male  agnate  of  the  family 
which  had  the  primacy  of  the  township.  Similarly 
the  power  which  had  at  first  been  more  military  than 
anything  else,  would  in  more  peaceful  times  tend 
rather  to  assume  a  political  and  judicial  form.  The 
leader  thus  taken  from  the  privileged  family  would 
have  the  largest  share  of  the  lands  appropriated  from 
conquered  village-societies ;  and  there  is  ground  for 
supposing  that  he  was  sometimes  rewarded  by  an 
exceptionally  large  share  of  the  common  land  belong- 
ing to  the  society  which  he  had  headed.  Everything  in 
fact  which  disturbed  the  peaceful  order  of  the  villagt; 
system  led   to   the   aggrandisement  of  the   leading 

L 


146  ELEMENTS    OF   FEUDAL   SYSTEM.  lect.  v 

family  and  of  its  chief.  Among  the  privileges  which 
he  obtained  was  one  of  which  the  importance  did  not 
show  itself  till  much  later.  He  became  powerful 
enough  in  his  own  township  to  sever  his  own  plot  of 
land  from  the  rest,  and,  if  he  thought  fit,  to  enclose 
it;  and  thus  to  break  up  or  enfeeble  that  system  of 
common  cultivation  under  rules  of  obligatory  custom 
which  depended  mainly  on  the  concurrence  of  all  the 
villagers. 

There  were  therefore,  in  the  cultivating  communi- 
ties of  the  German  and  Scandinavian  races,  causes 
»t.  work  which  were  leading  to  inequality  of  property 
in  land.  There  were  causes  at  work  which  were 
leading  to  the  establishment  of  superiorities  or  suze- 
rainties of  one  township  over  another.  There  were 
causes  at  work  which  tended  to  place  the  benefits  of 
an  unequal  proprietary  system  and  the  enjoyment  of 
these  suzerainties  in  the  hands  of  particular  families, 
and  consequently  of  their  chiefs  for  the  time  bemg. 
Here  you  have  all  the  elements  of  the  system  we  are 
compelled  to  call  feudal.  But  the  system  in  its 
ultimate  development  was  the  result  of  a  double  set 
of  influences.  One  set,  which  I  have  been  describing, 
were  of  primitive  growth.  Another  showed  them- 
selves when  powerful  Teutonic  monarchies  began  to 
be  formed,  and  consisted  in  grants  of  national  waste 
land  or  of  the  soil  of  conquered  provinces.  Doubtless 
some  of  the  grantees  were  chiefs  of  families  already 


EECT.  V.  STSTEiLVTIC   FEUDALISM.  147 

risen  to  power  under  indigenous  Teutonic  conditions; 
but  in  any  case  a  Beneficiary  would  be  a  chieftain  of 
a  peculiarly  powerful  class.  The  cultivators  of  his 
land  would  either  be  persons  settled  on  it  by  himself, 
or  they  would  be  vanquished  provincials  who  had 
no  rio:hts  which  he  did  not  choose  to  recocrnise  or 
concede.  It  is  not,  therefore,  surprising  that  there 
should  have  been  a  completer  constitution  of  feudalism 
in  the  countries  which  at  the  time  of  conquest  were 
filled  with  Romanised  populations.  The  mould 
would  be  Teutonic,  but  the  materials  would  be 
unusually  plastic,  and  here  would  more  especially 
come  into  play  the  influence  of  Romrm  law,  giving 
precision  to  relations  which  under  purely  Teutonic 
social  conditions  may  have  been  in  a  high  degree 
vague  and  indefinite.  It  is  well  known  that  this 
systematic  feudalism  reacted  upon  the  more  purely 
Teutonic  societies  and  gave  an  impulse  to  changes 
which  were  elsewhere  proceeding  at  a  slower  pace. 

I  have  very  briefly  summarised  the  results  of  a 
very  long  and  laborious  enquiry,  and  only  so  far  as 
is  necessary  for  my  immediate  purpose.  ^Merely 
remarking  that  I  can  see  little  or  nothing  in  the 
conclusions  of  these  eminent  German  writers  which 
is  out  of  harmony  with  the  account  given  by  English 
scholars  of  the  parallel  phenomena  of  change  mani- 
fested in  England  before  the  Conquest,  I  proceed  to 
ask,  following  the  scheme  of  these  Lectures,  whether 

L  2 


148  ANTIQUAEIANISM   OF   INDIAJf   POLITICS.        lect.  t. 

the  experience  of  Englishmen  in  India  throws  any 
light  or  has  any  bearing  upon  the  questions  which 
have  been  occupying  us?     It  is  not  too  much  to  say 
that  the  phenomena  observed  in  the  East,  and  those 
established  in  the  West  by  historical  research,  illus- 
•trate  one  another  at  every  point.     In  India  these  dry 
bones   live.     Not  only,  as   I  have  told  you,  is  the 
YiUage-Community  the  basis  of  British  administration 
in  those  provinces  in  which  the  art  of  government 
has   to   be  practised  with  skill  and  caution,  but  a 
number   of  controversies   turning   on   the  mode   of 
transition  from  the  village  system  to  what  I  have 
called  the  manorial  system  are  as  earnestly,  and  some- 
times even  as  violently,  debated   by  our  countrymen 
in  the  East  as  are  the  great  aspects  of  politics  among 
ourselves.     All  Indian  disputes  take,  I  should  explain, 
a  historical  or  antiquarian  shape.     The   assumption 
universally  made  is  that  the  country  must  be  governed 
in  harmony  with  the  established  usages  of  the  natives, 
and  each  administrative  school  has  therefore  to  justify 
its  opinions  by  showing  that  the  principles  to  which 
it  adheres  are  found  in  some  sense  or  other  to  underlie 
the  known  customary  law  of  India.     The  extrava- 
gance of  partisanship    which   here    shows   itself  in 
unqualified   assertion   of  the   universal    applicability 
of  general  propositions  has  its  Indian  counterpart  in 
unqualified   assertion  of  the    universal  existence   of 
particular  customs.     The  Indian  controversy  is,  how 


UECT.  V.        POLITICAL   EESULTS    OF    SETTLEMENTS.  149 

ever,  a  controversy  about  facts  which,  though  they 
are  more  complex  than  the  disputants  suppose,  are 
nevertheless  much  simpler  than  the  material  of 
English  political  controversy;  and  the  results  are 
therefore  proportionately  more  instructive  to  the  by- 
stander who  has  entire  sympathy  with  neither  party. 
Let  us  suppose  a  province  annexed  for  the  first 
time  to  the  British  Indian  Empire.  The  first  civil 
act  of  the  new  government  is  always  to  effect  a  settle- 
ment of  the  land  revenue ;  that  is,  to  determine  the 
amount  of  that  relatively  large  share  of  the  produce 
of  the  soil,  or  of  its  value,  which  is  demanded  by  the 
sovereign  in  all  Oriental  States,  and  out  of  which 
all  the  main  expenses  of  government  are  defrayed. 
Among  the  many  questions  upon  which  a  decision 
must  be  had,  the  one  of  most  practical  importance  is, 
'  Who  shall  be  settled  with  ? ' — with  whom  shall  the 
settlement  be  made?  What  persons,  what  bodies, 
what  groups,  shall  be  held  responsible  to  the  British 
Government  for  its  land  revenue?  What  practically 
has  to  be  determined  is  the  unit  of  society  for 
agrarian  purposes;  and  you  find  that,  in  determining 
it,  you  determine  everything,  and  give  its  character 
finally  to  the  entire  political  and  social  constitution  of 
the  province.  You  are  at  once  compelled  to  confer  on 
the  selected  class  powers  co-extensive  with  its  duties 
to  the  sovereign.  Xot  that  the  assumption  is  ever 
made  that  new  proprietary  powers  are  conferred  on  it, 


150  VARIOUS   FORMS    OF   SETTLEMENT.  lect.  v. 

but  what  are  supposed  to  be  its  rights  in  relation  to  all 
other  classes  are  defined;  and  in  the  vague  and  floating 
order  of  primitive  societies,  the  mere  definition  of  a 
right  immensely  increases  its  strength.  As  a  matter 
of  fact,  it  is  found  that  all  agrarian  rights,  whether 
superior  or  subordinate  to  those  of  the  person  held 
responsible  to  Government,  have  a  steady  tendency  to 
decay.  I  will  not  ask  you  to  remember  the  technical 
names  of  the  various  classes  of  persons  '  settled  with ' 
in  different  parts  of  India — Zemindars,  Talukdars, 
Lumberdars — names  which  doubtless  sound  uncouth, 
and  which,  in  fact,  have  not  an  identical  meaninsj 
throughout  the  country — but  I  dwell  on  the  fact  that 
the  various  interests  in  the  soil  which  these  names 
symbolise  are  seen  to  grow  at  the  expense  of  all  others. 
Do  you,  on  entering  on  the  settlement  of  a  new 
province,  find  that  a  peasant  proprietary  has  been 
displaced  by  an  oligarchy  of  vigorous  usurpers,  and 
do  you  think  it  expedient  to  take  the  government 
dues  from  the  once  oppressed  yeomen  ?  The  result  is 
the  immediate  decline,  and  consequently  bitter  dis- 
content, of  the  class  above  them,  who  find  themselves 
sinking  to  the  footing  of  mere  annuitants  on  the  land. 
Such  was  the  land  settlement  of  Oudh,  which  was 
shattered  to  pieces  by  the  Sepoy  mutiny  of  1857,  and 
which  greatly  affected  its  course.  Do  you,  reversing 
this  policy,  arrange  that  the  superior  holder  shall  be 
answerable  to  Government?     You  find  that  you  have 


tECT.  V.       GROWTH    L\    TOWER   OF    OFFICIAL    HOLDER.        151 

created  a  landed  aristocracy  which  has  no  parallel  in 
wealth  or  power  except  the  proprietors  of  English 
soil.  Of  this  nature  is  the  more  modern  settlement 
of  the  province  of  Oudh,  only  recently  consummated; 
and  such  will  ultimately  be  the  position  of  the 
Talukdars,  or  Barons,  among  whom  its  soil  has  been 
divided.  Do  you  adopt  a  policy  different  from  either 
of  those  which  I  have  indicated  and  make  your  ar- 
rangements with  the  representative  of  the  village-com- 
munity? You  find  that  you  have  arrested  a  process 
of  change  which  w^as  steadily  proceeding.  You  have 
given  to  this  peculiar  proprietary  group  a  vitality 
which  it  was  losing,  and  a  stiffiiess  to  the  relations  of 
the  various  classes  composing  it  which  they  never  had 
before. 

It  would  be  a  mere  conceit  to  try  to  establisli  any 
close  analogy  between  the  Teutonic  Kings  and  the 
British  government  of  India.  Yet,  so  much  as  this 
is  true  and  instructive.  The  only  owner  of  the  sod. 
of  India  with  whom  the  English  Government  has  any 
relations,  is,  in  its  eyes,  a  mere  functionary.  It 
chooses  him  where  it  pleases,  and  exacts  from  him 
services,  chiefly  pecuniary,  but  to  a  certain  small 
extent  personal.  It  is  found,  however,  that  when 
an  official  appointed  by  a  powerful  government  acts 
upon  the  loose  constitution  of  a  primitive  society  he 
crushes  down  all  other  classes  and  exalts  that  to  which 
he  himself  belons-s.     But  for  recent  le^'islation  tins 


152  MAHOMETAN  ASSUMPTIONS.  lect    v 

process  would  have  gone  to  any  length  in  India,  and 
would  have  assuredly  affected  many  other  provinces 
than  those  which  were  its  immediate  theatre.  It  may, 
at  least,  be  said  that  by  observing  it  we  gain  a  clearer 
conception  of  the  effect  of  beneficiary  gifts  on  the 
general  tenure  of  land,  and  that  we  better  understand 
the  enormous  power  acquired  by  the  chieftains  who 
rendered  immediate  services  to  the  Teutonic  kings. 

The  English  in  India  appear  to  have  started  with 
the  assumption  of  the  Mahometans  that  the  sovereign 
might  lawfully  select  anybody  he  pleased  as  the 
collector  of  his  revenue;  but  they  soon  accepted  the 
principle  that  the  class  to  be  '  settled  with  '  was  the 
class  best  entitled  to  be  regarded  as  having  rights  of 
property  in  the  soil.  At  a  later  date  they  discovered 
that,  even  when  this  class  was  determined,  they  had 
to  decide  what  it  was  that  proprietary  rights  over 
Indian  land  implied,  and  what  powers  they  carried 
with  them.  No  questions  fuller  of  inherent  diffi- 
culties were  ever  proposed  for  solution.  As  regards 
the  first  of  them,  the  functionaries  administering 
India  might,  with  some  eminent  exceptions,  but  still 
not  unfairly,  be  distributed  into  two  great  schools — 
the  partisans  of  the  theory  that  the  soil  belongs  tc 
the  peasantry  either  as  individuals  or  as  organised  in 
groups  ;  and  the  partisans  of  the  theory  that  owner- 
ship of  the  soil  ought  to  be,  and  but  for  British  in^ 
fluence  would  be,  everywhere  in  India  vested  in  some 
sort  of  native   Hnstocracy.      As    rej^ards  the  second 


LECT.  V.  INDIAI^   SCHOOLS   OF   OPINION.  Iu3 

question,  the  Indian  officials  are  much  more  exactly- 
divided  into  those  who  contend  that  the  highest  right 
of    property   acknowledged   to   exist   over   the   soil 
carries  with  it  the  same  powers  which  attach  to  an 
English  owner  in  fee-simple  of  the  present  day,  and 
into  those  who  are  of  opinion  that,  if  these  powers  are 
to  square  with  native  idea  and  custom,  they  must  be 
more  or  less  limited  and  controlled.     The  controver- 
sies on  these  two  points  are  the  most  vehemently  de- 
bated of  Indian  disputes  ;  and  none  ever  presented 
greater  difficulties  to  the  person  who  tries  to  form  an 
opinion  on  their  merits,  not  from  his  own  knowledge 
but  upon  the  evidence   supplied  to  him  by  others. 
He  finds  men  of  the  utmost  experience,  of  trained 
power  of  observation,  and  of  the  most  unquestionable 
good  faith,  stating  precisely  opposite  conclusions  with 
precisely  equal  positiveness.      But  if  he  avail  himself 
of  the  advantage  given  him  by  the  parallel  facts  of 
European  tenure,  he  will,  perhaps,  venture  to  have  an 
opinion,  and  to  think  that  in  these,  as  in  many  other 
fierce  disputes,  both  sides  are  right  and  both  sides  are 
wrong. 

There  is  no  doubt  that  the  first  point  at  issue  was 
much  obscured,  and  attention  diverted  to  irrelevant 
matter,  by  the  unlucky  experiment  tried  at  the  end 
of  the  last  century  by  Lord  Cornwallis.  A  province, 
like  Bengal  Proper,  where  the  village  system  had 
fallen  to  pieces  of  itself,  was  the  proper  field  for  the 
creation  of  a  peasant  proprietary;  but  Lord  Com  wallk 


154  INDIAN   FORMS    OF    PROrERTY.  lbct.  ? 

turued  it  into  a  country  of  great  estates,  £.,nd  was 
compelled  to  take  his  landlords  from  the  tax- 
gatherers  of  his  worthless  predecessors.  The  politi- 
cal valuelessness  of  the  proprietary  thus  created,  its 
failure  to  obtain  any  wholesome  influence  over  the 
peasantry,  and  its  oppression  of  all  inferior  holders,  led 
not  only  to  distrust  of  the  economical  principles  im- 
plied in  its  establishment,  but  to  a  sort  of  reluctance 
to  believe  in  the  existence  of  any  naturally  privileged 
class  in  the  provinces  subsequently  acquired  and 
examined.  The  most  distinguished  public  servants 
of  that  day  have  left  much  on  record  whicli  implies 
an  opinion  that  no  ownership  of  Indian  land  was  dis- 
coverable, except  that  of  the  village-communities, 
subject  to  the  dominion  of  the  State. 

But  in  fact  it  appears  that,  of  all  the  landmarks  on 
the  line  of  movement  traced  by  German  and  English 
scholars  from  the  Village  group  to  the  Manorial 
group,  there  is  not  one  which  may  not  be  met  with 
in  India,  saving  always  the  extreme  points  at  either 
end.  I  have  not  had  described  to  me  any  village- 
community  under  the  unmodified  collective  govern- 
ment of  the  heads  of  households,  but  there  are  those 
who  think  they  find  the  vestiges  of  the  original  con- 
stitution in  a  sort  of  democratic  spirit  and  habit  oi 
free  criticism  which  prevail  even  when  the  govern- 
ment has  passed  to  an  hereditary  officer.  If  any 
thoroughly  authenticated  example  could  be  produced 


LWT.  V.  THE    HEADMAN".  155 

of  a  community  exercising  absolute  liberty  of  choice 
in  electing  its  Headman,  it  would  point  still  more 
significantly  to  an  unmodified  original  equality;  but 
the  preference  alleged  to  be  invariably  shown  to  the 
members  of  particular  families  appears  to  show  that 
these  elections  belong  really  to  the  phenomena  of 
hereditary  succession.  It  is  not,  however,  disputed 
that  villages  are  found  in  great  numbers  in  which 
the  government  is  lodged  with  a  council,  neither 
claiming  to  be  nor  regarded  as  being  anything  more 
than  a  representation  of  the  entire  cultivating  body 
The  instances,  however,  in  which  the  authority  has 
passed  to  some  particular  family  or  families  are 
extremely  numerous.  Sometimes  the  ofiice  of  Head- 
man belongs  absolutely  to  the  head  of  a  particular 
family;  sometimes  it  belongs  to  him  primarily,  but 
he  may  be  set  aside  for  incapacity  or  physical  blemish ; 
sometimes  there  is  a  power  of  choosing  him  limited 
to  an  election  between  the  members  of  one  or  more 
privileged  households.  The  powers  which  he  enjoys — 
or  which  it  perhaps  should  be  said,  he  would  enjoy 
under  native  conditions  of  society — are  also  very 
various.  But  the  judicial  power  of  mediating  in 
disputes  and  of  interpreting  customs  appears  to  be 
certainl}''  vested  in  him,  together  with  the  duty 
of  keeping  order  ;  and,  independently  of  the  func- 
tions which  he  discharges  with  the  consent  of  hia 
neighbours,  the  British  Government  often  expressly 


156         rROrERTY   RECOGNISED   BY   THE   ENGLISH.        leci.  v. 

confides  to  him  a  certain  amount  of  regular  jurisdic- 
tion and  of  regular  authority  in  matters  of  police. 

There  is  no  question  that  many  of  the  families 
whom  the  Eno;lish  have  recognised  as  owners  of 
villages  were  privileged  families  enjoying  the  primacy 
of  the  township  ;  but  the  widest  difference  of  opinion 
has  prevailed  as  to  the  nature  and  origin  of  the  rights 
claimed  by  certain  families  for  their  chiefs  over 
whole  tracts  of  country,  embracing  the  domain  of 
several  village-communities.  It  has  been  strongly 
contended  on  one  side  that  these  great  proprietors 
are  nothing  but  the  descendants  of  farmers  of  the 
revenue  under  Native  Governments  ;  on  the  other  it 
is  asserted  that  in  some  cases  at  all  events  they  were 
Chieftains  of  Clans  who  were  selected  by  preference  to 
represent  the  Royal  or  Imperial  native  government 
in  districts  in  which  they  had  an  hereditary  influence. 
There  appears  to  me  reasonable  evidence  that  this 
last  theory  is  true  of  certain  localities  in  India.  Clan 
socie^"y  is  also  in  Europe  the  Celtic  form  of  the  family 
r'^ganisation  of  society;  and,  for  myself,  I  have  great 
difficulty  in  conceiving  the  origin  of  customary  law 
otherwise  than  by  assuming  the  former  existence  of 
larger  groups,  under  patriarchal  chieftains,  which  at 
a  later  date  dissolved  into  the  independent  collec- 
tions of  families  forming  the  cultivatmg  commu- 
nities of  the  Teutonic  (includmg  the  Scandinavian) 
races  and  of  the  Hindoos. 

If  it  be  taken  for  irranted  that  the  Eno:lish  in  India 


tECJ.  V.  ABSOLUTE   OWNERSHIP.  157 

were  bound  to  recognise  rights  of  property  some- 
where, their  selection  of  the  persons  in  whom  these 
rights  should  vest  does  not  seem  to  have  been  aa 
absurd  as  the  adherents  of  one  Indian  school  are  in 
the  habit  of  hintino;,  if  not  of  assertincf.  Claims  to 
some  sort  of  superior  right  over  land  in  fact  existed 
which  corresponded  to  every  single  stage  through 
which  the  conception  of  proprietorship  has  passed 
m  the  Western  world,  excepting  only  the  later 
stages.  The  variety  of  these  claims  was  practically 
infinite,  and  not  only  did  not  diminish,  but  greatly 
increased,  as  native  customs  and  ideas  were  more 
accurately  examined.  Even  when  the  village-com- 
munities were  allowed  to  be  in  some  sense  the  pro- 
prietors of  the  land  which  they  tilled,  they  proved  on 
careful  inspection  not  to  be  simple  groups,  but  highly 
composite  bodies,  composed  of  several  sections  with 
conflicting  and  occasionally  with  irreconcilable  claims. 
The  English  officials  solved  a  problem  of  almost 
hopeless  perplexity  by  registering  all  the  owners  of 
superior  rights  as  landowners,  their  conception  of 
ownership  being  roughly  taken  from  their  own 
country;  but  the  fundamental  question  very  soon 
revived  under  another  form  in  the  shape  of  the 
second  issue  disputed  between  the  Indian  administra- 
tive schools,  which  is,  whether  proprietorship  in 
India  is  to  be  taken  to  be  the  same  assemblage  of 
powers  which  constitutes  the  modern  English  owner- 
ship of  land  in  fee-simple. 


168  NATURE    OK   RIGHTS    OF   PROPERTY.  ibct.  v 

It  seems  to  me  that  the  error  of  the  school  which 
asserts  the  existence  of  strong  proprietary  rights  in 
India  lies  mnch  less  in  merely  making  this  assertion 
than  in  assuming  the  existence  of  a  perfect  analogy 
between  rights  of  property  as  understood  in  India  and 
as  understood  in  this  country.  The  presumption  is 
strongly  against  the  reality  of  any  such  correspond- 
ence. The  rights  of  property  are,  in  the  eye  of  the 
jurist,  a  bundle  of  powers,  capable  of  being  mentally 
contemplated  apart  from  one  another  and  capable 
of  being  separately  enjoyed.  The  historical  enquirer 
can  also,  whenever  there  are  materials  for  a  history 
of  the  past,  trace  the  gradual  growth  of  the  conception 
of  absolute  property  in  land.  That  conception  appears 
to  me,  for  reasons  which  I  shall  afterwards  assign,  to 
have  grown  out  of  the  ownership  of  the  lord  in  that 
portion  of  his  domain  which  he  cultivated  by  his  im- 
mediate personal  dependants,  and  therefore  to  be  a  late 
and  gradually  matured  fruit  of  the  feudalisation  of 
Europe.  A  process  closely  resembling  feudalisation  was 
undoubtedly  once  at  work  in  India  ;  there  are  Indian 
phenomena  answering  to  the  phenomena  of  nascent 
absolute  ownership  in  England  and  Europe;  but  then 
these  Indiafn  phenomena,  instead  of  succeeding  one 
another,  are  all  found  existing  together  at  the  present 
moment.  The  feudalisation  of  India,  if  so  it  may  be 
called,  was  never  in  fact  completed.  The  character- 
istic sifi^ns  of  its  consummation  are  wanting.     It  maj 


MCT.  T.      DEVELOPMENT    OF   ABSOLUTE   OWNERSHIP.  IM 

be  doubted  whether  in  any  single  instance  the  w4:ole 
power  of  regulating  the  affairs  of  the  village-ccm- 
munity  had  passed  to  an  hereditary  official  when  the 
English  entered  the  country;  on  the  other  hand,  in 
the  enormous  majority  of  examples  there  are  pecu- 
liarities of  organisation  which  show  conclusively  that 
the  village-group  is  either  unmodified  or  has  not  yet 
nearly  passed  into  the  manorial  group.  Even,  how- 
ever, were  we  at  liberty  to  believe  that  India  has  been 
completely  feudalised,  we  should  still  be  as  far  as 
possible  from  being  entitled  to  assume  that  the  high- 
est Indian  form  of  ownership  corresponds  to  the  ab- 
solute ownership  of  the  English  holder  in  fee-simple. 
It  has  been  said  that  man}^  persons  talk  and  write  as 
if  all  the  Englishmen  who  lived  between  the  Norman 
Conquest  and  the  Reformation  lived  at  exactly  the 
same  time ;  but  this  Indian  assumption  implies  that 
there  has  been  no  change  in  our  conception  of  landed 
property  between  the  epoch  at  which  England  be- 
came completely  feudal  and  the  epoch  (let  us  say)  at 
which  the  Corn-laws  were  repealed.  Yet  during  aU 
these  centuries  England  has  been  legislatively  and  to 
a  great  extent  judicially  centralised,  and  has  been 
acted  on  by  economical  influences  of  very  great  uni- 
formity. India,  from  the  earliest  ages  till  the  British 
entered  it,  was  under  the  dominion  of  comparatively 
[)Owerful  kings,  who  swept  away  the  produce  of  the 
labour  of  the  village -communities  and  carried  off  the 


IGO  VESTED   RIGHTS   IN   INDIA.  lect.  ▼ 

young  men  to  serve  in  their  wars,  but  did  not  other- 
wise  meddle  with  the  cultivating  societies.  This  was 
doubtless  the  great  cause  of  their  irregular  develop- 
ment. Intertribal  wars  soon  gave  way  to  the  wars 
of  great  kings  leading  mercenary  armies,  but  these 
monarchs,  with  few  and  doubtful  exceptions,  neither 
legislated  nor  centralised.  The  village-communities 
were  left  to  modify  themselves  separately  in  their 
own  way. 

This  subject  is  one  of  much  practical  importance, 
and  I  propose  to  treat  of  the  more  difficult  problems 
which  it  raises  in  the  next  Lecture;  at  present  I  wdll 
content  myself  with  repeating  that  there  seems  to  me 
the  heaviest  presumption  against  the  existence  in 
any  part  of  India  of  a  form  of  ownership  conferring 
the  exact  rights  on  the  proprietor  which  are  given  by 
the  present  English  ownership  in  fee-simple.  There 
are  now,  however,  a  vast  number  of  vested  rights  in 
the  country,  fully  recognised  by  the  English  Govern- 
ment, which  assume  the  identity  of  Indian  and 
English  proprietorship,  and  neither  justice  nor  policy 
permits  them  to  be  disturbed.  Moreover  it  is  ab- 
stractedly possible  that  further  observation  of  par- 
ticular localities  by  accurate  observers  may,  so  far  as 
regards  those  localities,  rebut  the  presumption  of 
which  I  have  spoken,  provided  that  the  enquirer  be 
acquainted  with  the  parallel  phenomena  which  belong 
to  European  legal  history,  and  provided  that  he  possess 


tECT.  V.  THE   FEUDALISATION    OF   EUROPE.  161 

the  faculty,  not  very  common  among  us,  of  distin- 
guishing the  rudimentary  stages  of  legal  thought  from 
its  maturity.  The  way  in  which,  among  the  unlet- 
tered members  of  a  primitive  society,  law  and  morality 
run  into  one  another  ought  especially  to  be  studied. 
The  subordinate  holder  who  in  India  states  that  the 
superior  holder  has  the  power  to  do  a  certain  act,  but 
that  he  ought  not  to  do  it,  does  not  make  an  admis- 
sion ;  he  raises  a  question  of  the  utmost  difficulty. 

It  has  been  usual  to  speak  of  the  feudalisation  of 
Western  Europe  as  if  it  had  been  an  unmixed  evil, 
and  there  is  but  too  much  reason  to  believe  that  it 
was  accompanied  in  its  course  by  a  great  amount  of 
human  suffering.  But  there  are  some  facts  of  Indian 
experience  which  may  lead  us  to  think  that  the 
advantage  of  some  of  the  economical  and  juridical 
results  which  it  produced  has  been  underrated.  If 
the  process  indeed  had  really  consisted,  as  some  of 
the  enthusiasts  for  its  repetition  in  India  appear  to 
suppose  that  it  did,  merely  in  the  superposition  of 
the  lord  over  the  free  owners  of  land,  with  power 
to  demand  such  services  or  dues  as  he  pleased  and 
to  vary  his  demands  at  pleasure,  very  little  indeed 
could  be  said  for  it.  But  this  picture  of  it  is  cer- 
tainly untrue  of  our  own  country.  We  are  not  at 
liberty  to  assume  that  the  obligations  incurred  by  the 
free  owner  of  land  who  commended  himself  to  a  lord 
were  other  than,  within  certain   limits,   fixed   and 

M 


lea  CULTIVATION   OF    WASTE-LAND.  li5CT.  v 

definite  services;  and  the  one  distinguishing  cliarac- 
teristic  which  the  English  feudists  discover  in  that 
free  Socage  tenure  for  w4iich  the  English  villagers 
most  probably  exchanged  their  allodial  ownership  is 
certainty,  regularity  and  permanence  of  service.  The 
ffreat  novelties  which  the  transition  from  one  form  of 
property  to  another  produced  were,  the  new  authority 
over  the  waste  which  the  lord  acquired  (and  which 
was  connected  with  the  transfer  to  him  of  the  half 
judicial,  half  legislative,  powers  of  the  collective 
community)  and  the  emancipation  of  the  lord  within 
his  own  domains  from  the  fetters  of  obligatory  agri- 
cultural custom.  Now  Europe  was  then  full  of  great 
wastes,  and  the  urgent  business  in  hand  was  to  reclaim 
them.  Large  forests  were  to  be  felled,  and  wide 
tracts  of  untilled  land  had  to  be  brought  under 
cultivation.  In  England,  inexorably  confined  within 
natural  boundaries,  there  pressed  with  increasing  force 
the  necessity  for  adopting  the  methods  of  agriculture 
which  were  fitted  to  augment  the  total  supply  of  food 
for  a  growing  population.  But  for  this  work  society 
organised  in  village-communities  is  but  little  adapted. 
The  Indian  administrators  who  regard  the  cultivating 
groups  with  most  favour,  contend  that  they  secure  a 
large  amount  of  comfort  and  happiness  for  the  families 
included  within  them,  that  their  industry  is  generally, 
and  that  their  skill  is  occasionally,  meritorious.  But 
their  admirers  certainly  do  not  claim  for  them  that 


LKCT.  V.  IMPROVEMENTS    IN   TILLAGE.  168 

they  readily  adopt  new  crops  and  new  modes  of  tillage, 
and  it  is  often  admitted  that  they  are  grudging  and 
improvident  owners  of  their  waste-land.  The  British 
Government,  as  I  before  stated,  has  applied  a  remedy 
to  this  last  defect  by  acting  on  the  right  to  curtail 
excessive  wastes  which  it  inherited  from  its  prede- 
cessors; and  of  late  years  it  has  done  its  utmost  to 
extend  and  improve  the  cultivation  of  one  great 
staple,  Cotton — amid  difficulties  which  seem  to  be  very 
imperfectly  understood  by  those  who  suppose  that  in 
order  to  obtain  the  sowing  of  a  new  crop,  or  the 
sowing  of  an  old  crop  in  a  new  way,  from  a  peasant 
in  bondage  to  hereditary  custom,  it  is  enough  to 
prove  to  him  that  it  is  very  likely  to  be  profitable. 
There  is  Indian  e"sddence  that  the  forms  of  property 
imitated  from  modern  English  examples  have  a  value 
of  their  own,  when  reclamation  has  to  be  conducted 
on  a  large  scale,  or  novelties  in  agriculture  have  to  be 
introduced.  The  Zemindars  of  Lower  Bengal,  the 
landed  proprietary  estabUshed  by  Lord  Cornwallis, 
have  the  worst  reputation  as  landlords,  and  appear  to 
have  frequently  deserved  it ;  but  the  grants  of  land 
originally  made  to  them  included  great  uncultivated 
tracts,  and  at  the  time  when  their  power  over 
subordinate  holders  was  least  limited  they  brought 
large  areas  of  waste -land  under  tillage  by  the  colonies 
of  peasants  which  they  planted  there.  The  pro- 
prietorship conferred  on  them  has  also  much  to  dc 

M  2 


164  VILLAGE-COMMUNITIES   AND   CUSTOMS.  lbct.  f 

with  the  introduction  into  Lower  Bengal,  nearly 
alone  among  Indian  provinces,  of  new  and  vast 
agricultural  industries,  which,  if  they  had  been  placed 
under  timely  regulation  (which  unfortunately  they 
were  not)  would  have  added  as  much  to  the  comfort 
of  the  people  as  they  have  added  to  the  wealth  of  the 
country. 

It  appears  therefore  to  me  to  be  highly  probable  that 
the  autocratically  governed  manorial  group  is  better 
suited  than  the  village  group  for  bringing  under  cul- 
tivation a  country  in  which  waste-lands  are  extensive 
So  also  does  it  seem  to  me  likely  to  have  been  at  all 
times  more  tolerant  of  agricultural  novelties.  It  is  a 
serious  error  to  suppose  that  the  non-feudal  forms  of 
property  which  characterised  the  cultivating  commu- 
aiities  had  any  real  resemblance  to  the  absolute 
property  of  our  own  day.  The  land  was  free  only 
in  the  sense  of  being  free  from  feudal  services,  but  it 
was  enslaved  to  custom.  An  intricate  net  of  usage 
bound  down  the  allodial  owner,  as  it  now  binds  the 
Indian  peasant,  to  a  fixed  routine  of  cultivation. 
It  can  hardly  be  said  that  in  England  or  Germany 
these  usaojes  had  ceased  to  exercise  a  deadening* 
influence  even  within  living  memory,  since  very 
recent  writers  in  both  countries  complain  of  the  bad 
agriculture,  perpetuated  by  custom  in  the  open 
common  fields.  The  famous  movement  against 
Inclosures  under  the  Tudor  reims  was  certainly  in 


LECT.  V.  CUSTOMARY    TILLAGE.  166 

part   provoked   by   inclosures  of  plots  in  the   three 
common  fields  made  with  the  intention  of  breaking 
the  custom  and  extending  the  systematic  cultivation 
of  grasses  ;  and  it  is  curious  to  find  the  witnesses 
examined  before  the  Select  Committee  of  1844  using 
precisely  the  same  language  which  was  employed  by 
the  writers  who  in  the  sixteenth  century  took  the 
unpopular   side,    and   declaring   that   the  value  and 
produce  of  the  intermixed  lands  might  be  very  greatly 
increased  if  the  owner,  instead  of  having  one  plot  in 
each  field,  had  three  plots  thrown  together  in  one 
field  and  dealt  with  them  as  he  pleased.     As  I  said 
before,  it  seems  to  me  a  plausible  conjecture  that  our 
absolute  form  of  property  is  really  descended  from 
the  proprietorship  of  the  lord  in  the  domain  which — 
besides  planting  it  with  the  settlements  of '  unfree ' 
families — he  tilled,  when  it  was  close  to  his  castle  or 
manor-house,  by  his  own  dependants  under  his  own 
eye.     He   was    free    from  the  agricultural  customs 
which  shackled   those   below  him,  and   the  services 
exacted  from  above  were  not  of  a  kind  to  affect  his 
management  of  the  land  which  he  kept  in  his  hands. 
The  English  settlers  on  the  New  England  coast  did 
not,  as  I  shall  point  out,  at  first  adopt  this  form  of 
property,    but    they    did  so    very    shortly,  and   we 
unquestionably   owe    to   it  such  an  achievement  as 
the  cultivation  of  the  soil  of  North  America. 

If,  however,  a  society  organised  in  groups  on  the 


165  SERVILE   DEPENDANTS    OF   VILLAGES.  LBCT.  V. 

primitive  model  is  ineffective  for  Production,  so  alsc 
if  left  to  develop  itself  solely  under  primitive  influ- 
ences it  fiiils  to  secure  any  considerable  improvement 
in  Distribution.  Although  it  is  hardly  possible  to 
avoid  speaking  of  the  Western  village  groups  as  in 
one  stage  democratically  governed,  they  were  really 
oligarchies,  as  the  Eastern  communities  alvrays  tend 
to  become.  These  little  societies  had  doubtless 
anciently  a  power  of  absorption,  when  men  were  of 
more  value  than  land.  But  this  they  lose  in  time. 
There  is  plenty  of  evidence  that,  when  "Western 
Europe  was  undergoing  feudalisation,  it  was  full  of 
enthralled  classes  ;  and  I  imagine  that  the  authority 
acquired  by  the  feudal  chief  over  the  waste  was  much 
more  of  an  advantage  than  the  contrary  to  these 
classes,  whom  he  planted  largely  there  in  colonies 
which  have  probably  been  sometimes  mistaken  for 
assemblages  of  originally  free  villagers.  The  status 
of  the  slave  is  always  deplorable  ;  the  status  of 
the  predial  slave  is  often  worse  than  that  of  the 
personal  or  household  slave  ;  but  the  lowest  depth 
of  miserable  subjection  is  reached  when  the  person 
enthralled  to  the  land  is  ai  the  mercy  of  peasants, 
whether  they  exercise  their  powers  singly  or  in 
communities. 

Whether  the  Indian  village -communities  had 
wholly  lost  their  capacity  for  the  absorption  of 
strangers  when  the   British    dominion   began,    is  a 


I,ECT.  V.         VILLAGES    CEASE   TO   ABSORB   STR,\NGERS.         16? 

point  on  which  I  have  heard  several  contradictory 
opinions  ;  but  it  is  beyond  doubt  that  the  influence 
of  the  British  Government,  which  in  this  respect  is 
nothing  more  than  the  ordinary  influence  of  settled 
authority,  has  tended  steadily  to  turn  the  com- 
munities into  close  corporations.  The  definition  of 
rights  which  it  has  efi^ected  through  its  various 
judicial  agencies — the  process  of  law  by  which  it 
punishes  violations  of  right — above  all  the  money 
value  which  it  has  given  to  all  rights  by  the  security 
which  it  has  established  from  one  end  of  India  to 
another — have  all  helped  to  make  the  classes  in 
possession  of  vested  rights  cling  to  them  with  daily 
increasing  tenacity.  To  a  certain  small  extent  this 
indirect  and  unintended  process  of  shutting  the  door 
to  the  acquisition  of  new  communal  rights  has  been 
counteracted  by  a  rough  rule  introduced  by  the 
English,  and  lately  engrafted  on  the  written  law, 
under  which  the  cultivator  of  the  soil  who  has  been 
in  possession  of  it  for  a  period  of  years  is  in  some 
parts  of  India  protected  against  a  few  of  the  extreme 
powers  which  attach  to  ownership  of  the  modern 
English  type.  But  the  rule  is  now  in  some  discredit, 
and  the  sphere  of  its  operation  has  of  late  been  much 
curtailed.  And  my  own  opinion  (which  I  shall  state 
more  at  length  in  the  next  Lecture)  is,  that  even  if 
the  utmost  effect  were  given  to  it,  it  would  not  make 
up  for  some  of  the  inequalities  of  distribution  between 


108  NASSE's   work.  lect.  t 

classes  actually  included  in  the  village  group  which 
have  made  their  way  into  it  through  the  influence  oi 
economical  ideas  originating  in  the  West.  On  the 
whole  the  conclusion  which  I  have  arrived  at  con- 
cerning the  village-communities  is  that,  during  the 
primitive  struggle  for  existence  they  were  expansive 
and  elastic  bodies,  and  these  properties  may  be  per- 
petuated in  them  for  any  time  by  bad  government. 
But  tolerably  good  government  takes  away  their 
absorptive  power  by  its  indirect  effects,  and  can  only 
restore  it  by  direct  interposition. 

It  was  part  of  my  design  to  append  to  these 
Lectures  an  epitome  of  the  work  in  which  Professor 
Nasse  has  attempted  to  connect  the  actual  condition 
of  landed  property  in  much  of  England  at  the  end  of 
the  last  century  as  shown  in  the  various  publications 
of  Marshall,  with  the  early  English  forms  of  tenure 
and  cultivation  as  known  to  us  through  the  labours 
of  English  and  German  scholars.  But  I  have  aban- 
doned my  intention  on  learning  that  Nasse's  book  is 
likely  to  be  made  generally  accessible  through  an 
Eno;lish  translation.  The  undertakinsr  is  one  which 
presents  considerable  difficulties.  Nasse  complains 
of  the  unusual  scarcity  of  English  records  bearing 
on  tenure  and  agricultural  custom,  but  in  this  place 
we  may  note  another  class  of  difficulties  having 
its  source  in  those  abundant  technicalities  of  English 
real-property  law  which  are  so  hard  to  read  by  any- 


tECT.  V.  THE   STATUTE   OF   DEVISES.  169 

body  except  the  professional  lawyer;  and  yet  another 
in  the  historical  theory  of  their  land  law  which 
almost  all  English  lawyers  have  adopted,  and  which 
colours  all  English  treatises  and  all  the  decisions  of 
English  Courts — a  theory  which,  it  is  not  unjust  to 
say,  practically  regards  the  manorial  system  as  having 
no  ascertainable  antecedents,  and  all  rights  primd 
facie  inconsistent  with  it  as  having  established  them- 
selves through  prescription  and  by  the  sufferance  of 
the  lord.  I  may  be  allowed  to  say  that  the  book  in 
which  Nasse  has  knotted  together  the  two  ends  of  the 
historical  thread  is  a  very  extraordinary  one  to  be 
written  by  a  foreigner.  Much  of  it  deals  with 
matter  which  can  only  be  discussed  appropriately  in 
other  departments  of  study;  but  I  may  notice  in  this 
place  one  set  of  causes,  of  a  purely  juridical  nature, 
which,  besides  those  assigned  by  Nasse,  tended  in 
later  times  to  throw  small  or  yeomen  properties  into 
the  hands  of  large  landowners.  The  popular  opinion 
much  exaggerates  the  extent  to  which  this  accumu- 
lation of  landed  properties  had  proceeded  before  the 
great  inclosures  of  the  last  century,  but  still  it  had 
gone  some  length,  and  undoubtedly  one  cause  was 
the  influence,  not  at  first  strongly  felt,  of  the  Statute 
of  Devises.  Each  landed  proprietor  ultimately  ac- 
quired the  power — within  limits  certainly,  but  very 
wide  ones — to  create  a  private  law  for  his  own  estate. 
The  efi^orts  of  English  judges  to  introduce  order  into 


170  RULES   FOR   CONSTRUINcJ   WILLS.  MCT.  V. 

this  chaos  made  it  rather  worse  ;  for  the  expedient 
which  they  adopted  for  the  purpose  was  to  give  a 
forced  technical  meaning  to  the  popular  language  oi 
testators.  One  large  and  complex  branch  of  English 
law  is  still  concerned  with  the  rules  for  construing 
in  a  technical  sense  the  loose  popular  expressions 
found  in  wills.  Every  estate,  willed  away  by  a  tes- 
tator technically  unlearned,  was  in  danger  of  being 
burdened  with  a  mj^s  of  conflicting  rights  and  in- 
terests, for  the  most  pait  never  contemplated  by  ^he 
testator  himself  There  was  only  one  way  of  insuring 
oneself  against  this  consequence,  and  that  was  the 
employment  of  an  expert  to  make  the  will ;  but  there 
is  reason  to  believe  that  the  wholesale  employment 
of  legal  experts  which  is  now  one  of  the  singularities 
of  this  country  is  of  comparatively  modern  date,  since 
it  is  one  of  the  traditions  of  the  English  Bar,  derived 
from  the  last  generation  of  lawyers,  that  among  the 
oreat  sources  of  litisration  were  at  one  time  wills 
made  by  village  schoolmasters.  Estates  thus  bur- 
dened could  only  be  held  by  very  rich  men  ;  as  they 
alone  could  provide  and  insure  against  the  technical 
traps  which  abounded  in  the  private  law  under  which 
the  land  was  held,  or  could  render  them  innocuous  by 
continued  possession  ending  in  a  prescriptive  title.  It 
is  impossible  not  to  see  that  the  practice  of  un- 
shackled devise  tended  to  bring  small  estates  into  the 
market  as  unprofitable  to  the  holders  through  the 


LECT.  V.        RESTRAINTS  ON  TESTAMENTARY  POWER.  171 

complication  of  interests  in  them,  and  at  the  same 
time  tended  to  make  them  purchaseable  by  rich  men 
only. 

The  simple  truth  is  that,  if  a  system  of  small  or 
peasant  holdings  is  to  continue,  the  power  of  testators 
must  be  severely  restrained  in  order  to  produce  sim- 
plicity in  the  law  of  the  estate.  It  does  not  at  all 
follow  that  the  restrictions  must  be  those  of  the  Code 
Napoleon  ;  but  restrictions  there  must  be,  and  I 
venture  to  think  that  a  not  unsatisfactory  solution  of 
the  problem  is  to  be  found  in  the  law  by  which  the 
Indian  Government  has  recently  sought  to  control 
the  power  of  will-making,  which  the  early  English 
judges  either  introduced  into  India  or  invested  with 
proportions  which  had  never  belonged  to  it  before. 


LECTURE    VI. 

THE  EAELY  HISTORY  OF  PRICE  AND  RENT. 


CONTENTS. 

Structure  of  Village-Communities — Divisions  of  the  Community — 
Property  within  the  Community — Tradition  as  to  Rights — Exac- 
tions of  Indian  Sovereigns — Indian  Rent — Difficulty  of  Question 
— Anglo-Indian  Ideas — Customary  and  Competition  Rents — The 
Protected  Tenants — Indian  and  English  Forms  of  Property — 
True  Character  of  Problem — The  Irish  Clan — Rack-Rent  paid  by 
Strangers — Primitive  Notion  as  to  Price — Early  Measure  of 
Price — Basis  of  Political  Economy — The  Market — Markets  and 
Neutrality — Influence  of  Market  Law — Sentiments  Adverse  to 
Political  Economy — Primitive  Commercial  Principles — Influence 
of  Carrying  Trade — Price  and  Rent — Market  for  Land  in 
England — New  Information  Required — Village-Communities  in 
America. 


LECTURE  VI. 

THE  EARLY  HISTORY  OF  PRICE  AND  RENT. 

The  village-communities  which  are  still  found  in  the 
Eastern  world,  exhibit,  at  first  sight,  a  much  simpler 
structure  than  appears  on  close  examination.  At  the 
outset  they  seem  to  be  associations  of  kinsmen,  united 
by  the  assumption  (doubtless,  very  vaguely  con- 
ceived) of  a  common  lineage.  Sometimes  the  com- 
munity is  unconnected  with  any  exterior  body,  save 
by  the  shadowy  bond  of  caste.  Sometimes  it  ac- 
knowledges itself  to  belong  to  a  larger  group  or  clan. 
But  in  all  cases  the  community  is  so  organised  as  to 
be  complete  in  itself.  The  end  for  which  it  exists 
is  the  tillage  of  the  soil,  and  it  contains  within  itself  the 
means  of  following  its  occupation  without  help  from 
outside.  The  brotherhood,  besides  the  cultivatino" 
families  who  form  the  major  part  of  the  group,  com- 
prises families  hereditarily  engaged  in  the  humble  arts 
which  furnish  the  little  society  with  articles  of  use 
and  comfort.  It  includes  a  village  watch  and  a 
village  police,  and  there  are  organised  authorities  for 


176  DIVISIONS   OF   THE   COMMUNITY.  lect.  TT. 

the  settlement  of  disputes  and  the  maintenance  of 
civil  order. 

But,  when  the  Indian  village-communities  are  more 
carefully  scrutinised,  a  more  complex  structure  dis- 
closes itself.  I  told  you  that  some  dominant  family  oc- 
casionally claims  a  superiority  over  the  whole  brother- 
hood, and  even  over  a  number  of  separate  villages, 
especially  when  the  villagers  form  part  of  a  larger 
aggregate,  tribe  or  clan.  But,  besides  this,  the  com- 
munity itself  is  found,  on  close  observation,  to  exhibit 
divisions  which  run  through  its  internal  framework. 
Sometimes  men  of  widely  different  castes,  or  Maho- 
metans and  Hindoos,  are  found  united  in  the  same 
village  group  ;  but  in  such  cases  its  artificial  struc- 
ture is  not  disguised,  and  the  sections  of  the  commu- 
nity dwell  in  different  parts  of  the  inhabited  area. 
But  the  most  interesting  division  of  the  community 
—though  the  one  which  creates  most  practical  diffi- 
culty— may  be  described  as  a  division  into  several 
parallel  social  strata.  There  are,  first,  a  certain  num- 
ber of  families  who  are  traditionally  said  to  be  de- 
scended from  the  founder  of  the  village ;  and  I  may 
here  repeat  a  statement  made  to  me  that  the  agricul- 
tural traditions  of  India,  differing  in  this  from  the 
heroic  traditions  which  furnish  a  subject  to  the  great 
Sanscrit  poems,  imply  that  the  occupation  of  the  rich 
Indian  plains  was  a  process  rather  of  colonisation  than 
of  conquest.     Below  these  families,  descended  from 


LECT.  VI.        PROPERTY   WITHIN   THE   COMMUNITY.  17? 

the  originators  of  the  colony,  there  are  others,  dis- 
tributed into  well  ascertained  groups.  The  brother- 
hood, in  fact,  forms  a  sort  of  hierarchy,  the  degrees  of 
which  are  determined  by  the  order  in  which  the 
various  sets  of  families  were  amalgamated  with  the 
community.  The  tradition  is  clear  enough  as  to  the 
succession  of  the  groups  and  is  probably  the  representa- 
tion of  a  fact.  But  the  length  of  the  intervals  of  time 
between  each  successive  amalgamation,  which  is  also 
sometimes  given  and  which  is  always  enormous,  may 
be  safely  regarded  as  untrustworthy ;  and,  indeed, 
numbers  count  for  nothing  in  the  East. 

The  relations  of  these  component  sections  to  one 
another  have  furnished  Eastern  statesmen  with  the 
problem  wliich,  of  all  others,  has  perplexed  them 
most.  For  it  has  been  necessary  to  translate  them 
into  proprietary  relations.  The  superiority  of  each 
group  in  the  hierarchy  to  those  below  it  bears  un- 
doubtedly some  analogy  to  superiority  of  ownership 
in  the  land  which  all  alike  cultivate.  But  the 
question  has  been.  What  is  the  superiority  to  carry 
with  it  when  translated  into  a  higher  right  of  pro- 
perty ?  What  division  is  it  to  imply  of  the  total 
produce  of  the  village  domain  ?  What  power  is 
it  to  confer  of  dealing  with  the  land  itself  ?  A 
law  of  tenure  and  tenancy  had  in  fact  to  be  con- 
structed, not  only  outside  but  inside  the  cultivating 
group. 

N 


178  TRADITION   AS    TO    RIGHTS.  LECr.  ti. 

It  is  easy  to  see  that  these  questions  were  not  of 
the  kind  on  which  traditions  were  lilcely  to  throw  any 
considerable  light.  For  traditions,  as  I  before  stated, 
though  tenaciously  preserved  by  organised  primitive 
societies,  are  only  thoroughly  to  be  depended  upon 
when  there  have  been  acts  and  practices  correspond- 
ing to  them.  It  is  extremely  likely  that  the  tradi- 
tional respect  of  each  group  of  families  within  the 
community  for  those  above  it  did  occasionally  take 
some  concrete  form,  but  it  is  in  the  highest  degree 
improbable  that  the  various  layers  of  the  little  society 
were  connected  by  anythmg  like  the  systematic  pay- 
ment of  rent.  For  what  is  it  which  in  primitive  states 
of  society  forces  groups  of  men  to  submit  to  that  amal- 
gamation of  strangers  with  the  brotherhood  which 
seems  at  first  forbidden  by  its  very  constitution  ?  It  is 
the  urgency  of  the  struggle  for  existence — a  struggle 
in  the  West  probably  both  with  man  and  with  nature — 
in  the  East  a  struggle  less  with  savage  enemies  than 
with  nature,  not  indeed  unkindly,  but  extraordinarily 
capricious,  and  difficult  to  subdue  from  her  very 
exuberance.  The  utmost  available  supply  of  human 
labour  at  first  merely  extracts  from  the  soil  what  is 
sufficient  for  the  subsistence  of  the  cultivating  group, 
and  thus  it  is  the  extreme  value  of  new  labour  which 
condones  the  foreign  origin  of  the  new  hands  which 
bring  it.  No  doubt  there  comes  a  time  when  this 
process  ceases,  when  the  fictions  which  conceal  it  seem 


LECT.  VI.         EXACTIONS   OF    INDIAN   SOVEREIGNS.  179 

to  die  out,  and  when  the  village-commumty  becomes 
a  close  corporation.  As  soon  as  this  point  is  reached 
there  is  no  doubt  that  any  new-comers  would  only  be 
admitted  on  terms  of  paying  money  or  rendering 
service  for  the  use  and  occupation  of  land.  But  in 
India,  at  all  events,  another  set  of  influences  then  came 
into  play  which  have  had  the  efiect  of  making  the 
vestiges  of  the  payment  of  rent  extremely  faint  and 
feeble.  All  Oriental  sovereigns  feed  their  courts  and 
armies  by  an  unusually  large  share  of  the  produce  of 
the  soil  which  their  subjects  till.  The  Indian  mon- 
archs  of  whose  practices  we  have  any  real  knowledge 
took  so  much  of  the  produce  in  the  shape  of  land- 
revenue  as  to  leave  to  the  cultivating  groups  little 
more  than  the  means  of  bare  subsistence.  There  is 
no  discernible  difference  in  this  respect  between  the 
jVIahometan  Emperors  of  Delhi,  the  Mahratta  princes 
who  were  dividing  the  Mogul  Empire  between  them 
when  the  English  first  appeared,  or  the  still  more 
modern  Hindoo  sectaries,  called  the  Sikhs,  from  whom 
we  conquered  the  Punjab.  Such  nobility  as  existed 
was  supported  not  by  rents  but  by  assignments  of  the 
royal  revenue  ;  and  the  natural  aristocracy  of  the 
country  would  have  differed  in  little  from  the  humbler 
classes  but  for  these  assignments,  or  for  the  money 
which  stuck  to  their  fingers  as  the  tax-gatherers  of 
the  king.  The  fund  out  of  which  rent  is  provided 
is  in  fact  a  British  creation — the  fruit  of  the  peace 

s  2 


180  INDIAN  KENT.  user.  TI. 

which  the  British  have  kept  and  of  the  moderation  ol 
their  fiscal  demands. 

It  is  sometimes  said,  in  connection  with  this  subject, 
that  the  idea  of  property  in  land  is  realised  with 
extreme  distinctness  by  the  natives  of  India.  The 
assertion  is  true,  but  has  not  the  importance  which 
it  at  first  appears  to  possess.  Between  village-commu- 
nity and  village-community,  between  total  group  and 
total  group,  the  notion  of  an  exclusive  right  to  the 
domain  is  doubtless  always  present  ;  and  there  are 
many  striking  stories  current  respecting  the  tenacity 
with  which  expelled  communities  preserve  traditions 
of  their  ancient  seat.  But  to  convince  himself  that, 
as  regards  the  interior  of  the  group,  the  notion  of 
dependent  tenures  connecting  one  stratum  with  an- 
other is  very  imperfectly  conceived,  it  is  only  neces- 
sary for  an  impartial  person  to  read  or  Hsten  to  the 
contradictory  statements  made  by  keen  observers  of 
equal  good  faith.  The  problem  of  Indian  Rent  cannot 
be  doubted  to  be  one  of  great  intrinsic  difficulty.  To 
see  this,  it  need  only  be  stated.  The  question  is  not 
one  as  to  a  custom,  in  the  true  sense  of  the  word  ; 
the  fund  out  of  which  rent  comes  has  not  hitherto 
existed  or  has  barely  existed,  and  hence  it  has  not 
been  asserted  on  either  side  of  the  dispute  that 
rent  (as  distinct  from  the  Government  revenue)  was 
paid  for  the  use  or  occupation  of  land  before  the 
establishment  of  the  British  Empire,  or  that,  if  it  was 


LECT.  vi.  DIFFICULTY   OF   QUESTION.  181 

paid,  it  bore  any  relation  to  the  competition  value  of 
cultivable  soil.  Nor  was  it  an  enquiry  as  to  a  tra- 
dition, because  the  further  you  recede  from  the  be- 
ginning of  British  rule  the  greater  is  your  distance 
from  the  conditions  under  which  the  exaction  of 
competition-rent  for  land  becomes  conceivable.  The 
true  problem  can  only  be  stated  by  making  an  assump- 
tion contrary  to  the  fact.  Assume  a  market  for  land 
and  assume  the  existence  of  the  fund  out  of  which 
rent  comes — what  primitive  ideas  can  be  traced  which 
point  to  the  distribution  of  the  fund  in  any  particular 
way  ?  Such  is  the  question.  It  is  on  the  whole,  I 
think,  to  be  regretted  that  the  British  Government 
allowed  its  servants  to  embark  on  such  an  enquiry. 
However  desirable  it  may  be  to  govern  the  natives 
of  the  country  in  harmony  with  their  own  ideas,  the 
effect  of  attempting  to  grapple  with  a  problem  under 
such  vague  conditions  has  led  to  violent  recoils  of 
opinion  and  practice  on  a  matter  in  which  settled 
policy  was  pre-eminently  counselled  by  justice  and 
prudence  ;  and  in  this  case  it  would  have  been  better, 
I  think,  to  abandon  the  historical  mode  of  dealing 
■with  a  practical  question  peculiar  to  the  Indian 
government,  to  choose  the  social  and  economical  prin- 
ciples on  which  it  was  intended  to  act,  and  to  adhere 
to  them  until  their  political  unsoundness  was  esta- 
bUshed.  But  to  the  student  of  legal  history  the 
question  is  one  of  very  considerable  interest,  and,  how. 


182  ANGLO-INDIAN  IDEAS.  lect.  vi 

ever  little  suited  it  may  be  for  the  Council  cliamber, 
it  may  very  excusably  be  bandied  in  this  place. 

When  first,  amid  the  general  discredit  of  the  ex- 
periment tried  by  Lord  Cornwallis  in  Bengal  Proper, 
the  Indian  administrators  of  fifty  or  sixty  years 
since  began  to  recognise  the  village-community  as 
the  true  proprietary  unit  of  the  country,  they  had 
very  soon  to  face  the  problem  of  rent.  They  in  some 
cases  recognised  an  ownership  superior  to  that  of  the 
village  itself ;  though  it  is  alleged  by  their  critics  that 
they  did  not  recognise  it  as  much  as  they  ought  to 
have  done.  Within  the  village-community  they  in 
all  cases  recognised  a  hierarchy  of  minor  groups, 
distinguished  in  some  way  by  the  difference  of  their 
riorhts  in  the  soil.  Besides  their  observation  of  Indian 
phenomena,  which  was  here  (as  I  have  explained) 
conducted  under  extraordinary  difficulties,  they  had 
nothing  to  guide  them  to  a  conclusion  except  the  Eng- 
lish forms  of  property  in  land  ;  and  they  probably 
accepted  unreservedly  from  the  lawyers  of  that  day 
the  belief  that  the  system  actually  obtaining  in  Eng- 
land was  not  only  the  ancient  system  of  the  countrj' 
but  that  it  was  semi- sacred.  A  further  misleading 
influence  was  the  phraseology  already  introduced  by 
the  Economists.  Between  customary  rents  and  compe- 
tition-rents they  did  not  fail  to  distinguish,  and  would 
probably  not  have  denied  that,  as  a  matter  of  fact, 
customary  rents  were  more  common  and,  as  a  matter 


LECT.  Yi.        CUSTOMARY  AXD   COMPETITIOX   EENTS.  IdS 

of  recorded  histor}'-,  were  more  ancient  than  competi- 
tition-rents.  But  still,  misled  by  an  error  which  has  of 
late  been  very  justly  compared  with  a  still  more  famous 
delusion  of  the  Roman  lawyers  (by  Mr.  Cliffe  Leslie, 
'  Fortnightly  Review,'  November  1870),  they  believed 
competition-rents  to  be,  in  some  sense  or  other,  more 
natural  than  customary  rents,  and  to  competition- 
rents  only  they  gave  the  name  Rent,  unqualified  by 
an  epithet.  This  peculiar  and  (as  it  seems  to  me)  im- 
proper selection  of  a  cardinal  term  is  not  probably  of 
much  importance  in  this  country ;  but  few  sufficiently 
instructed  persons,  who  have  followed  recent  Indian 
controversies,  can  have  failed  to  observe  that  almost 
all  the  obscurities  of  mental  apprehension  which  are 
implied  in  the  use  of  Nature  as  a  juridical  term  clus- 
ter in  India  round  the  word,  Rent.  Still  there  was 
too  much  around  the  earliest  Anglo-Indian  observers 
which  seemed  inconsistent  with  (to  say  the  least)  the 
universal  occurrence  in  India  of  the  English  relation 
between  landlord  and  tenant-at-will  for  them  to 
assume  unhesitatingly  that  the  absolute  ownership  of 
the  soil  was  vested  in  some  one  class,  and  that  the  rest 
of  the  cultivating  community  were  simply  connected 
with  the  proprietar}^  class  by  paying  for  the  use  of 
the  land  whatever  the  members  of  that  class  saw  fit  to 
demand.  They  did  assume  that  the  persons  who  were 
acknowledged  to  be  entitled  to  have  the  highest  rights 
in  the  soil,  whether  within  the  community  or  without 


184  THE    PROTECTED    TE^TANTS.  lect.   vi 

it,  bore  a  very  close  analogy  to  English  landowners  in 
fee  simple.  They  further  took  for  granted  that  the 
great  mass  of  the  cultivators  were  tenants -at-will  of 
the  English  pattern.  But  they  gave  effect  to  their 
doubts  of  the  correctness  of  these  analogies  by  creating 
between  landowner  and  tenant-at-will  an  intermediate 
class  of  protected,  or,  as  they  are  called  in  the  East, 
'  occupancy  '  tenants.  When,  under  the  government 
dispossessed  by  the  British,  any  cultivator  was  shown 
to  have  held  his  land  by  himself  or  his  ancestors  for 
a  certain  space  of  time,  he  was  declared  to  be  entitled 
to  a  qualified  protection  against  eviction  and  rack-rent. 
By  a  recent  legislative  enactment  this  principle  has 
been  generalised,  and  any  cultivator  who  even  under 
the  British  Government  has  been  undisturbed  by  his 
landlord  for  the  like  period  is  invested,  in  some  parts 
of  India,  with  the  same  protection.  But  at  first  the 
rule,  of  which  the  origin  is  uncertain,  was  probably 
intended  as  a  rough  way  of  determining  a  class  which 
in  some  sense  or  other  was  included  within  the  village- 
community.  The  exact  period  of  occupation  selected 
was  twelve  years  ;  the  longest  time  during  which  it 
seems  to  have  been  thought  safe  to  carry  back  into 
native  society  an  enquiry  upon  legal  evidence  into  a 
question  of  fact. 

On  this  rule  the  most  vehement  of  controversies 
has  arisen.  It  is  strongly  asserted  by  a  school  of  ob- 
servation and  theory  which  has  many  adherents  in  the 


LEca.  TI.     INDIAN   JLKD   ENGLISH   FORMS    OF   PROPERTY.     185 

present  day  that  close  examination  of  village-communi- 
ties does  not  show  that  mere  lapse  of  time  conferred 
any  rights  on  one  section  of  the  group  as  against 
another.  In  Indian  disputes,  as  in  many  others,  the 
advantage  is  at  "first  with  destructive  criticism,  and, 
upon  the  evidence  which  I  have  seen,  I  am  on  the 
whole  disposed  to  think  that  the  school  of  which  I 
am  speaking  is  in  the  right.  The  errors  into  which 
it  has  fallen  appear  to  me  to  begin  at  a  subsequent 
point.  Some  of  its  adherents  seem  to  think  that  a 
certain  correspondence  being  assumed  to  exist  be- 
tween a  certain  Indian  class  and  owners  of  land  in 
England,  and  a  certain  correspondence  being  further 
assumed  between  another  Indian  class  and  English 
tenants,  the  inference  inevitably  follows  that  the 
correspondence  must  be  so  close  as  to  imply  all  the 
incidents  of  the  English  relation  of  landlord  and 
tenant-at-will.  But  the  Indian  forms  of  property  in 
land  are  founded  on  the  Village  Group  as  the  proprie- 
tary unit;  the  English  forms  are  based  partly  on 
the  Manorial  Group  and  partly  on  a  state  of  things 
produced  by  its  disintegration  —  systems  historically 
so  wide  apart  can  hardly  be  used  even  to  illustrate 
one  another.  There  are  other  adherents  of  the  same 
opinion  who,  conscious  perhaps  of  the  true  difficulty, 
attempt  to  get  over  it  by  asking  the  peasants  belong- 
ing to  the  village-community  what  their  customs  are 
as  to  eviction,  rack-rent,  and  the  relation  of  la^^'llord 


186  TRUE   CHARACTER   OF    PROBLEM.  LECr.  vi. 

and  tenant.  Now,  if  there  were  the  faintest  reason 
for  supposing  that  there  ever  existed  in  India  an 
open  market  for  land  and  a  system  of  competition- 
rents,  such  an  enquiry  would  be  of  great  importance, 
for  unquestionably  cultivating  village  groups  are 
highly  retentive  of  tradition.  But,  eviction  being 
admitted  to  have  been  rarely  (if  ever)  practised,  and 
it  being  allowed  that  rent  was  never  paid  for  the  use 
of  land  or  (if  paid)  was  not  paid  on  any  scale  which 
indicated  its  principle,  to  ask  a  peasant  whether  a 
given  class  of  tenants  ought  or  ought  not  to  be 
subject  to  rack-rent  and  eviction  is  to  put  to  a  very 
ignorant  man  a  question  at  once  extremely  complex, 
extremely  ambiguous,  and  only  capable  of  being 
answered  (so  far  as  it  can  be  answered  at  all)  after  a 
careful  examination  of  the  parallel  phenomena  of 
many  different  ancient  systems  of  law.  The  reference 
to  the  peasantry  is  doubtless  honestly  made,  but  it  is 
an  appeal  to  the  least  competent  of  tribunals. 

The  question,  What  vestiges  remain  of  ancient  ideas 
as  to  the  circumstances  under  which  the  highest  ob- 
tainable rent  should  be  demanded  for  the  use  of  land, 
is  of  some  interest  to  the  student  of  legal  antiquities ; 
although  even  in  this  place  it  is  not  a  question  which 
can  be  very  confidently  answered.  The  most  distinct 
ancient  rule  which.  I  have  discovered  occurs  in  the 
first  of  the  official  volumes  containing  the  version  of 
the  Ancient  Laws  of  Ireland  published  by  the  Irish 


SECT.  VI.  THE    IRISH   CLAX.  187 

Government.  '  The  three  rents,'  it  says,  '  are  rack- 
rent,  from  a  person  of  a  strange  tribe — a  fair  rent, 
from  one  of  the  tribe — and  the  stipulated  rent,  which 
is  paid  equally  by  the  tribe  and  the  strange  tribe.' 
(Senchus  Mor,  p.  159.) 

This  very  much  expresses  the  conclusion  on  the 
subject  which  I  have  arrived  at  upon  the  less  direct 
evidence  derived  from  a  variety  of  quarters.  The 
Irish  clan  was  apparently  a  group  much  more  exten- 
sive and  of  much  looser  structure  than  the  Eastern 
or  Western  village-community  ;  it  appears  even  to 
have  embraced  persons  who  cannot  be  distinguished 
from  slaves.  Yet  from  none  of  these  (apart  from 
express  agreement)  could  any  rent  be  required  but 
a  rent  fair  according  to  received  ideas,  or,  in  other 
words,  a  customary  rent.  It  was  only  when  a  person 
totally  unconnected  with,  the  clan  by  any  of  those 
fictions  explaining  its  miscellaneous  composition  which 
were  doubtless  adopted  by  this  (as  by  all  other)  primi- 
tive groups — when  such  a  person  came  asking  for 
leave  to  occupy  land,  that  the  best  bargain  could  be 
made  with  him  to  which  he  could  be  got  to  submit. 
'  Rack-rent '  is  sometimes  used  as  a  dyslogistic  ex- 
pression for  an  extreme  competition-rent ;  but  you 
will  see  that  ideas  associated  with  competition-rents 
in  the  economical  sense  have  no  relation  whatever  to 
such  a  transaction.  In  a  primitive  society  the  person 
who  submits  to  extreme  terms   from  one  group  \a 


188  RACK-RENT  PAID   BY  STRANGERS.  lecx.  ti;. 

pretty  sure  to  be  an  outcast  thrown  on  the  world  by 
the  breaking  up  and  dispersion  of  some  other  group, 
and  the  effect  of  giving  him  land  on  these  terms  is 
not  to  bring  him  under  the  description  of  a  tenant 
as  understood  by  the  Economists,  but  to  reduce  him 
to  a  condition  resembling  predial  servitude.  I  need 
hardly  add  that,  in  stating  what  seem  to  me  the 
circumstances  under  which  a  rack-rent  could  be  de- 
manded according  to  primitive  ideas,  I  am  merely 
drawing  an  antiquarian  inference,  and  expressing  no 
opinion  whatever  on  the  political  expediency  or  other- 
wise of  limiting  the  claim  of  a  landlord  to  rent. 

The  enquiry  into  these  primitive  ideas  may  also 
be  conducted  by  another  route,  which  1  will  follow  for 
a  brief  space  on  account  of  some  curious  collateral 
questions  which  it  opens.  Let  me  begin  by  saying 
that  the  remains  of  ancient  Roman  law  forcibly 
suggest  that  in  ancient  times  transfers  of  the  pos- 
session of  land  were  extremely  rare.  The  formalities 
which  accompanied  them  were  of  extraordinary  cum- 
brousness,  and  these  formalities  had  to  be  strictly 
observed  not  only  in  transactions  which  we  should 
call  Conveyances,  but  also  in  the  transactions  which 
at  a  later  date  were  styled  Contracts.  The  ancient 
law  further  gives  reason  to  think  that  the  letting  and 
hiring  of  movable  property  for  a  consideration  was 
unknown  or  uncommon.  The  oldest  Roman  contracts 
systematically  treated  of  are  the  Real  Contracts,  and 


tEcr.  7X.  PRIMITIVE   NOTIONS   AS   TO   PRICE.  18S 

to  this  class  belongs  Loan;  but  the  loans  there  spoken 
of  are  gratuitous,  and  the  rules  laid  down  grew 
probably  out  of  the  practice  of  lending  from  house 
to  house  the  small  articles  of  movable  property  in 
use  among  a  primitive  people.  There  is  some  inte- 
rest in  observing  the  plentifulness  of  these  rules  in 
a  system  so  comparatively  mature  as  Roman  law 
when  contrasted  with  their  scantiness  in  English 
jurisprudence.  The  explanation  seems  to  be  that  the 
abundant  manufacture  nowadays  of  all  articles  of 
personal  property  causes  them  to  be  much  oftener 
owned  than  lent,  so  that  minute  rules  on  the  subject 
of  gratuitous  loans  become  superfluous. 

It  would  almost  certainly  be  labour  wasted  to 
search  among  the  records  of  ancient  law  for  any  trace 
of  the  ideas  which  we  associate  with  competition- 
rents.  But  if  land  in  primitive  times  was  very  rarely 
sold  or  (in  our  sense)  rented,  and  if  movable  pro- 
perty was  very  rarely  hired  for  money,  it  is  at  least 
probable  that  from  a  very  early  date  movables  were 
purchased.  It  does  not  appear  to  me  quite  a  hope- 
less undertaking  to  trace  the  gradual  development 
of  the  notions  connected  with  Price;  and  here,  if  at 
all,  we  shall  be  able  to  follow  the  early  history  of 
bargaining  or  competition.  Nor,  if  we  can  discover 
any  primitive  ideas  on  the  point,  need  we  hesitate  to 
transfer  them  from  the  sale  of  movables  to  the  com- 
petition-rent of  land.      The  Roman  lawyers  remark 


190  EARLY   MEASUEE   OF   PRICE.  lect.  n 

of  the  two  contracts  called  Emptio  Venditio,  or  Sale 
for  Price,  and  Locatio  Conductio,  or  Hiring  for  Con- 
sideration, that  they  are  substantially  the  same,  and 
that  the  rules  which  govern  one  may  be  applied  to 
the  other.  The  observation  seems  to  me  not  only 
true,  but  one  which  it  is  important  to  keep  in  mind. 
You  cannot  indeed  without  forcing  language  speak 
of  the  Contract  of  Sale  in  terms  of  the  Contract  of 
Letting  and  Hiring;  but  the  converse  is  easy,  and 
there  is  no  incorrectness  in  speaking  of  the  Letting 
and  Hiring  of  Land  as  a  Sale  for  a  period  of  time, 
with  the  price  spread  over  that  period.  I  must  con- 
fess I  could  wish  that  in  some  famous  books  this 
simple  truth  had  been  kept  in  view.  It  has  several 
times  occurred  to  me,  in  reading  treatises  on  Political 
Economy,  that  if  the  writer  had  always  recollected 
that  a  competition-rent  is  after  all  nothing  but  price 
payable  by  instalments,  much  unnecessarily  mys- 
terious language  might  have  been  spared  and  some 
(to  say  the  least)  doubtful  theories  as  to  the  origin 
of  rent  might  have  been  avoided.  The  value  of  this 
impression  anybody  can  verify  for  himself. 

What,  in  a  primitive  society,  is  the  measure  of 
Price?  It  can  only  be  called  Custom.  Although  in 
the  East  influences  destructive  of  the  primitive  notion 
are  actively  at  work,  yet  in  the  more  retired  villages 
the  artificer  who  plies  an  ancient  trade  still  seUs  his 
wares  for  the  customary  prices,  and  would  always 


LECT.  VI.  BASIS   OF   POLITICAL   ECONOJfY.  191 

change  their  quality  rather  than  their  price — a  prefer- 
ence, I  must  remark,  which  has  now  and  then  ex- 
posed the  natives  of  India  to  imputations  of  fraud  not 
wholly  deserved.  And  in  the  West,  even  in  our  own 
country,  there  are  traces  of  the  same  strong  feeling 
that  price  should  be  determined  by  Custom  in  the 
long  series  of  royal,  parliamentary,  and  municipal 
attempts  to  fix  prices  by  tarifi^.  Such  attempts  are 
justly  condemned  as  false  political  economy,  but  it  is 
sometimes  forgotten  that  false  political  economy  may 
be  very  instructive  history. 

What,  then,  is  the  origin  of  the  proposition  on 
which  the  whole  of  the  great  deductive  science  of 
Political  Economy  is  based  ?  No  good  political  econo- 
mist asserts  that,  as  matter  of  fact,  everybody  asks 
for  his  saleable  commodities  the  highest  obtainable 
price  ;  still  less  does  he  assert  that  everybody  ought 
to  ask  it.  What  he  lays  down  is  that  the  practice  of 
asking  it  is  sufficiently  general  to  make  it  safe  for 
practical  purposes  to  treat  it  as  universal.  When, 
however,  we  are  discussing  the  ideas  of  very  primitive 
societies,  it  is  extremely  difficult  to  draw  the  line 
between  law,  morality,  and  fact.  It  is  of  the  very 
essence  of  Custom,  and  this  indeed  chiefly  explains  its 
strength,  that  men  do  not  clearly  distinguish  between 
their  actions  and  their  duties — what  they  ought  to  do 
is  what  they  always  have  done,  and  they  do  it. 

What,  then,  is  the  origin  of  the  rule  that  a  mac 


192  THE  MAEKET.  lect.  ti 

may  ask — or,  if  yon  choose  so  to  put  it,  that  he  does 
ask — the  highest  available  price  for  the  wares  which 
he  has  to  sell?  I  think  that  it  is  in  the  beginning  a 
Rule  of  the  Market,  and  that  it  has  come  to  prevail 
in  proportion  to  the  spread  of  ideas  originating  in 
the  Market.  This  indeed  would  be  a  proposition  of 
little  value,  if  I  did  not  go  farther.  You  are  well 
aware  that  the  fundamental  proposition  of  Political 
Economy  is  often  put  as  the  rule  of  buying  in  the 
cheapest  market  and  selling  in  the  dearest.  But 
since  the  primitive  period  the  character  of  markets 
has  changed  almost  as  much  as  that  of  society  itself. 
In  order  to  understand  what  a  market  originally  was, 
you  must  try  to  picture  to  yourselves  a  territory 
occupied  by  village-communities,  self-acting  and  as 
yet  autonomous,  each  cultivating  its  arable  land  in 
the  middle  of  its  waste,  and  each,  I  fear  I  must  add, 
at  perpetual  war  with  its  neighbour.  But  at  several 
points,  points  probably  where  the  domains  of  two  or 
three  villages  converged,  there  appear  to  have  been 
spaces  of  what  we  should  now  call  neutral  ground. 
These  were  the  Markets.  They  were  probably  the 
only  places  at  which  the  members  of  the  different  pri- 
mitive groups  met  for  any  purpose  except  warfare,  and 
the  persons  who  came  to  them  were  doubtless  at  first 
persons  specially  empowered  to  exchange  the  produce 
and  manufactures  of  one  little  village-community  for 
thu6e  of  another.     Sir  John  Lubbock  in  his  recent 


LECT.  VI.  MAEKETS   AND   ^fEUTRALITY.  193 

volume  on  the  '  Origin  of  Civilisation,'  has  some 
interesting  remarks  on  the  traces  which  remain  of 
the  very  ancient  association  between  ]\Iarkets  and 
Neutrality  (p.  205);  nor — though  I  have  not  now 
an  opportunity  of  following  up  the  train  of  thought 
— can  I  help  observing  that  there  is  an  historical 
connection  of  the  utmost  importance  to  the  moderns 
between  the  two,  since  the  Jus  Gentium  of  the 
Roman  Prietor,  which  was  in  part  originally  a 
Market  Law,  is  the  undoubted  parent  of  our  In- 
ternational Law.  But,  besides  the  notion  of  neu- 
trality, another  idea  was  anciently  associated  with 
markets.  This  was  the  idea  of  sharp  practice 
and  hard  bargaining.  The  three  ideas  seem  all 
blended  in  the  attributes  of  the  god  Hermes  or 
Mercury — at  once  the  god  of  boundaries,  the  prince 
of  messengers  or  ambassadors,  and  the  patron  of 
trade,  of  cheating,  and  of  thieves. 

The  Market  was  then  the  space  of  neutral 
ground  in  which,  under  the  ancient  constitution  of 
society,  the  members  of  the  different  autonomous 
proprietary  groups  met  in  safety  and  bought  and 
sold  unshackled  by  customary  rule.  Here,  it  seems 
to  me,  the  notion  of  a  man's  right  to  get  the  best 
price  for  his  wares  took  its  rise,  and  hence  it  spread 
over  the  world.  Market  Law,  I  should  here  observe, 
has  had  a  great  fortune  in  legal  history.  The  Jus 
Gentium  of  the  Romans,   though  doubtless  intended 

0 


104  INFLUENCE   OF   MARKET    LAW  lbC7.  va. 

in  part  to  udjiist  the  relations  of  Roman  citizens  to  a 
subject  population,  grew  also  in  part  out  of  commer- 
cial exigencies,  and  the  Roman  Jus  Gentium  was 
gradually  sublimated  into  a  rroral  theoiy  which, 
among  theories  not  laying  claim  to  religious  sanction, 
had  no  rival  in  the  Avorld  till  the  ethical  doctrines  of 
Bentham  made  their  appearance.  If,  however,  I  could 
venture  to  detain  you  with  a  discussion  on  technical 
law,  T  could  easily  prove  that  Market  Law  has  long 
exercised  and  still  exercises  a  dissolving  and  trans- 
forming influence  over  the  very  class  of  rules  which 
are  profoundly  modifying  the  more  rigid  and  archaic 
branches  of  jurisprudence.  The  Law  of  Personal  or 
Moveable  Property  tends  to  absorb  the  Law  of  Land  or 
of  Immoveable  Property,  but  the  Law  of  Moveable 
Property  tends  steadily  to  assimilate  itself  to  the  Law 
of  the  Market.  The  wish  to  establish  as  law  that 
which  is  commercially  expedient  is  plainly  visible  in 
the  recent  decisions  of  English  courts  of  justice;  a 
whole  group  of  legal  maxims  having  their  origin  in 
the  law  of  the  market  (of  which  the  rule  of  caveai 
emptor  is  the  most  significant)  are  growing  at  the  ex- 
pense of  all  others  which  compete  with  them  ;  and  there 
is  a  steady  tendency  in  English  legislation  to  engraft 
new  rules,  as  from  time  to  time  they  are  developed 
by  traders,  upon  the  commercial  law  of  England. 
Finally,  the  most  recent  of  Indian  disputes  is  whethei 
native  opinion  admits  of  including  in  the  Civil  Code  of 
the  country  the  rule  that  a  man  who  in  good    faith 


Ij:ct.  VI,    SENTIMENTS  ADVERSE  TO  POLITICAL   ECONOifT.    195 

has  purchased  goods  of  another  shall  have  them, 
though  the  seller  had  really  no  title  to  them  and 
though  the  owner  claim  them.  This  is  in  reality  an 
extreme  rule  of  Market  Law,  and  it  is  often  described 
in  fact  as  the  rule  of  Market  Overt,  since  it  only  obtains 
in  England  where  that  description  of  market  exists. 

Political  Economists  often  complain  of  tlie  vague 
moral  sentiments  which  obstruct  the  complete  recep- 
tion of  their  principles.  It  seems  to  me  that  the  half- 
conscious  repulsions  which  men  feel  to  doctrines 
which  they  do  not  deny  might  often  be  examined 
with  more  profit  than  is  usually  supposed.  They  w^ill 
sometimes  be  found  to  be  the  reflection  of  an  older 
order  of  ideas.  Much  of  moral  opinion  is  no  doubt  in 
advance  of  law,  for  it  is  the  fruit  of  religious  or  philo 
sophical  theories  having  a  different  origin  from  law 
and  not  yet  incorporated  with  it.  But  a  good  deal  of 
it  seems  to  me  to  preserve  rules  of  conduct  which, 
though  expelled  from  law%  linger  in  sentiment  or 
practice.  The  repeal  of  the  Usury  Laws  has  made  it 
lawful  to  take  any  rate  of  interest  for  money,  yet 
the  taking  of  usurious  interest  is  not  thought  to  be 
respectable,  and  our  Courts  of  Equity  have  evidently 
great  difficulty  in  bringing  themselves  to  a  complete 
recognition  of  the  new  principle.  Bearing  this  exam- 
ple in  mind,  you  may  not  think  it  an  idle  question  if 
I  ask,  What  is  the  real  origin  of  the  feeling  that  it  is 
not  creditable  to  drive  a  hard  bargain  w^ith  a  near 

0  2 


196  PRIMITIVE    COMMERCIAL    PRINCIPLES.        eect.  VI, 

relative  or  a  friend  ?  It  can  hardly  be  said  that  there 
is  any  rule  of  morality  to  forbid  it.  The  feeling  seems 
to  me  to  bear  the  traces  of  the  old  notion  that  men 
united  in  natural  groups  do  not  deal  with  one  another 
on  principles  of  trade.  The  only  natural  group  in 
which  men  are  now  joined  is  the  family  ;  and  the  only 
bond  of  union  resembling  that  of  the  family  is  that 
which  men  create  for  themselves  by  friendship.  It  is 
stated  that  there  is  the  strongest  repulsion  among  the 
natives  of  India  to  that  extreme  rule  of  Market  Law 
which  I  described  to  you  as  proposed  to  be  engrafted 
on  the  Civil  Code.  The  point  is  doubtful  on  the 
evidence,  but,  considering  the  prevalence  and  vitality 
of  organised  natural  groups  in  India,  the  a  priori 
presumption  is  certainly  in  favour  of  the  existence 
of  the  alleged  repugnance. 

All  indications  seem  to  me  therefore  to  point  to  the 
same  conclusion.  Men  united  in  those  groups  out  of 
which  modern  society  has  grown  do  not  trade  together 
on  what  I  may  call  for  shortness  commercial  prin- 
ciples. The  general  proposition  which  is  the  basis  of 
Political  Economy,  made  its  first  approach  to  truth 
under  the  only  circumstances  which  admitted  of  men 
meeting  at  arm's  length,  not  as  members  of  the  same 
group,  but  as  strangers.  Gradually  the  assumption  of 
the  right  to  get  the  best  price  has  penetrated  into  the 
interior  of  these  groups,  but  it  is  never  completely 
received  so  long  as  the  bond  of  connection  between 


LBCT.  VI.  INFLUENCE   OF   CAERYING  TRADE.  197 

man  and  man  is  assumed  to  be  that  of  family  or  clan  - 
connection.  The  rule  only  triumphs  when  the  primi- 
tive community  is  in  ruins.  What  are  the  causea 
which  have  generalised  a  Rule  of  the  Market  until  it 
has  been  supposed  to  express  an  original  and  funda- 
mental tendency  of  human  nature,  it  is  impossible  to 
state  fully,  so  multifarious  have  they  been.  Every- 
thing which  has  helped  to  convert  society  into  a  col- 
lection of  individuals  from  being  an  assemblage  of 
families,  has  helped  to  add  to  the  truth  of  the  assertion 
made  of  human  nature  by  the  Pohtical  Economists. 
One  cause  may  be  assigned,  after  observation  of  the 
East,  in  the  substitution  of  caravan  or  carrying  trade 
for  the  frequentation  of  markets.  When  the  first 
system  grows  up,  the  merchant,  often  to  some  extent 
invested  with  the  privileges  of  an  ambassador,  carries 
his  goods  from  the  place  of  production,  stores  them  in 
local  entrep6ts,  and  sells  them  on  the  principles  of  the 
Market.  You  will  here  call  to  mind  the  curious  fact, 
stated  to  me  on  high  authority,  that  the  Grain-Dealer, 
though  a  man  of  great  consequence  and  wealth,  is 
often  excluded  in  India  from  village  or  municipal 
privileges  to  which  the  small  tradesmen  whose  busi- 
ness is  an  ancient  appendage  of  the  community  are 
freely  admitted.  I  am  also  informed  that  the  natives 
of  India  will  often  pay  willingly  a  competition  price 
for  one  article,  when  they  would  think  it  unjust  to  be 
asked  more  than  a  customary  price  for  another.     A 


198  PRICE   AND   RENT.  lect.  r.. 

man  who  will  pay  the  price  of  the  day  for  corn  col- 
lected from  all  parts  of  India,  or  for  cotton-cloth  from 
England,  will  complain  (so  I  am  told)  if  he  is  asked 
an  unaccustomed  price  for  a  shoe. 

If  the  notion  of  gettmg  the  best  price  for  moveable 
property  has  only  crept  to  reception  by  insensible 
steps,  it  is  all  but  certain  that  the  idea  of  taking  the 
highest  obtainable  rent  for  land  is  relatively  of  very 
modern  origin.  The  rent  of  land  corresponds  to  the 
price  of  goods,  but  doubtless  was  infinitely  slower  in 
conforming  to  economical  law,  since  the  impression  of 
a  brotherhood  in  the  ownership  of  land  still  survived 
when  goods  had  long  since  become  the  subject  of 
individual  property.  So  strong  is  the  presumption 
against  the  existence  of  competition-rents  in  a 
country  peopled  by  village-communities  that  it 
would  require  the  very  clearest  evidence  to  con- 
vince me  that  they  were  anywhere  found  under 
native  conditions  of  society,  but  the  evidence  (as  I 
told  you)  is  remarkably  unconvincing.  I  of  course 
admit  that  certain  classes  of  people  are  so  slightly 
connected  with  the  village-community  that,  under 
the  new  conditions  introduced  into  India  by  tlie 
English,  their  rents  would  probably  have  become 
competition -rents.  The  problem,  however,  presented 
by  these  classes  is  not  antiquarian  but  political.  It 
is  identical  with  that  terrible  problem  of  pauperism 
which  began  to  press  on  English  statesmen  as  soon 


UECX.  Yi.  MAKKET   FOR   LAND    IN   ENGLAND.  199 

as  the  old  English  cultivating  groups  began  distinctly 
to  fall  to  pieces.  In  India  the  solution  will  be  far 
more  difficult  than  it  has  proved  here,  since  the 
country  has  little  mineral  fuel  and  can  have  no 
manufactures  on  a  scale  to  occupy  a  large  surplup 
population ;  and  emigration  for  the  most  part  is 
regarded  as  mortal  sin. 

The  right  to  take  the  highest  obtainable  rent  for 
land  is,  as  a  matter  of  fact  and  as  a  matter  of 
morality,  a  right  derived  from  a  rule  of  the  market. 
Both  the  explanation  and  the  justification  of  the 
exercise  of  the  rio-ht  in  Eno-land  and  Scotland  is  that 
in  these  countries  there  really  is  a  market  for  land. 
Yet  it  is  notorious  that,  in  England  at  all  events, 
land  is  not  universally  rackrented.  But  where  is  it 
that  the  theoretical  right  is  not  exercised?  It  is 
substantially  true  that,  where  the  manorial  groups 
substituted  for  the  old  village  groups  survive,  there 
are  no  rackrents.  What  is  sometimes  called  the 
feudal  feeling  has  much  in  common  with  the  old 
feeling  of  brotherhood  which  forbade  hard  bargains, 
though  like  much  else  it  has  passed  from  the  collective 
community  to  the  modern  representative  of  its  auto- 
cratic chieftain.  Even  in  England  the  archaic  rules 
I  have  been  describing  have  not  yet  quite  lost  their 
authority. 

Here  I  conclude  the  Lectures  of  the  Term.  Their 
chief  object,  as  I  have  repeatedly  stated,  has  been  to 


200  JS'EW    INFORMATION   REQUIRED.  lect.  Vl. 

establish  a  connection  between  the  results  of  Indian 
experience  and  observation  and  the  conclusions 
arrived  at  by  German  and  English  learning.  But 
another  purpose  will  have  been  served  if  some  of 
those  who  have  attended  here  are  induced  to  help  in 
adding  to  our  knowledge  of  ancient  Enghsh  tenures. 
In  spite  of  the  information  collected  by  the  Select 
Committee  of  1844,  we  know  far  too  little  of  Com- 
mon and  Commonable  fields,  of  Lammas  lands, 
Common  meadows,  and  limited  rights  over  "Wastes, 
and  generally  of  manorial  customs.  Yet  forms  of 
property,  savouring  of  the  old  collective  enjoy- 
ment, seem  to  occur  so  frequently  that  almost  any- 
body has  the  opportunity  of  collecting  facts  which 
may  have  an  important  bearing  on  our  enquiry. 
The  speculative  interest  of  the  subject  I  need  scarcely 
enlarge  upon,  but  these  ancient  joint-holdings  have 
a  farther  interest  as  constituting  not  only  some  of 
the  oldest,  but  some  of  the  most  lasting  phenomena 
of  English  history.  It  is  a  striking  remark  of  Nasse 
that  the  English  common  field  system  bears  the  marks 
of  an  exotic  origin.  In  the  time  of  the  ruder  agri- 
culture which  has  now  given  way  to  scientific  tillage, 
the  natural  fitness  of  the  soil  of  England  was  for  grass 
farming,  and  the  tendency  to  resort  to  it  as  the  most 
profitable  form  of  cultivation  was  apparently  irresist- 
ible, and  out  of  it  grew  some  very  serious  agrarian 
movements.  The  three-field  system  was  therefore 
brought  by  our  Teutonic  ancestors  from  some  drier 


LECT.  VI.         VILLAGE-COMMUNITIES    IN   AMERICA.  201 

region  of  the  Continent.  It  is  a  very  remarkable 
fact  that  the  earliest  English  emigrants  to  North 
America — who,  you  know,  belonged  principally  to 
the  class  of  yeomanry — organised  themselves  at  first 
in  village-communities  for  purposes  of  cultivation. 
When  a  town  was  organised,  the  process  was  that 
'  the  General  Court  granted  a  tract  of  land  to  a  com- 
pany of  persons.  The  land  was  first  held  by  the 
company  as  property  in  common.'  (Palfrey,  '  History 
of  New  England,'  ii.  13.)  An  American  commentator 
on  this  passage  adds  :  '  The  company  of  proprietors 
proceeded  to  divide  the  land  by  assigning  first  house- 
lots  (in  Marlborough  from  fifteen  to  twenty  acres), 
then  tracts  of  meadow  land,  and  in  some  cases 
mineral  land,  i.e.  where  bog-iron  ore  was  found. 
Pasture  and  woodland  remained  in  common  as  the 
property  of  the  company,  but  a  law  of  the  General 
Court  in  1660  provided  that  "  hereafter  no  cottage 
or  dwelhng-house  be  admitted  to  the  privilege  of 
commonage  for  wood,  timber,  or  herbage  but  such 
as  are  already  in  being,  or  shall  be  erected  with  the 
consent  of  the  town."  From  that  time  the  com- 
moners appear  as  a  kind  of  aristocracy,  and  the 
commons  were  graduall}'^  divided  up.'  This  is  not 
only  a  tolerably  exact  account  of  the  ancient  Euro- 
pean and  existing  Indian  village-community,  but  it  ia 
also  a  history  of  its  natural  development,  where  the 
causes  which  turn  it  into  a  manorial  group  are  absent, 
and  of  its  ultimate  dissolution. 


THE  EFFECTS  OF  OBSERVATION  OF  DTOIA 
ON  MODERN  EUROPEAN  THOUGHT. 


CONTENTS. 

Dulness  of  Indian  Topics — Continental  Interest  in  India — Relation 
of  India  to  England — Influence  of  Study  of  Sanscrit — Political 
Results  of  Oriental  Studies — Materials  for  New  Science  in  India — 
Isolation  of  India — Coast  Populations — Character  of  the  Interior 
— Actual  Brahminical  Religion — Effects  of  Brahminism  on  older 
Faiths — Deification  of  Force — Actual  Character  of  Caste — The 
Comparative  Method  and  Property — Theories  of  Property — Indian 
Forms  of  Property — Indian  Discussions  on  Ownership — Value  of 
Indian  Phenomena — Early  History  of  Property — Ancient  Joint 
Ownership — Modern  Origin  of  Competition — Exchangeableness 
of  Land — Communistic  Theories — Several  Property  and  Civilisa- 
tion— The  Comparative  Method  and  Custom — Benthamism — Poli- 
tical Economy — India  and  the  Roman  Empire — India  and  Judaea 
— British  Government  of  India — Obstinacy  of  Native  Prejudice — 
Hellenic  Origin  of  Progress — English  Influence  in  India. 


THE  EFFECTS  OF  OBSERVATION  OF  INDIA   ON 
MODERN  EUROPEAN  THOUGHT.^ 

I  AM  WELL  AWARE  that,  in  undertaking  to  address 
an  English  audience  on  an  Indian  subject,  I  should 
under  ordinary  circumstances  have  to  preface  what  I 
have  to  say  with  an  apology  ;  but,  speaking  to  you 
here,  I  believe  it  will  be  enough  if  I  remind  you  that 
the  proverbial  dulness  attributed  to  Indian  topics 
by  Englishmen,  which  (as  they  are  apt  frankly  to 
allow)  does  not  reflect  any  particular  credit  upon 
them,  is  as  far  as  possible  from  being  recognised  by 
the  learned  class  in  any  other  community.  No  one 
can  observe  the  course  of  modern  thought  and 
enquiry  on  the  Continent,  and  especially  in  Germany, 
without  seeing  that  India,  so  far  from  being  regarded 
as  the  least  attractive  of  subjects,  is  rather  looked 
upon  as  the  most  exciting,  as  the  freshest,  as  the 
fullest  of  new  problems  and  of  the  promise  of  new 
discoveries.  The  fervor  of  enthusiasm  which  glows 
in  the  lines  written  by  the  greatest  of  German  poets 
when  the  dramatic  genius  of  the  Hindoos  first  became 

'  (The  Rede  Lecture  for  1875,  delivered  before  the  University  of 
Cambridge.) 


?06  CONTINENTAL    INTEREST   IN   INDIA. 

known  to  him  through  the  translation  of  Sakuntala^ 
seems  to  have  scarcely  abated  in  the  scholars  of  our 
day  who  follow  philological  studies  and  devote  them- 
selves to  the  new  branches  of  investigation  constantly 
thrown  out  by  the  sciences  of  Comparative  Philology 
and  Comparative  Mythology.  Nor  can  one  avoid 
seeing  that  their  view  of  India  affects  in  some  degree 
their  view  of  England  ;  and  that  the  community, 
which  is  stigmatised  more  systematically  on  the  Con- 
tinent than  it  is  perhaps  aware,  as  a  nation  of  shop- 
keepers, is  thought  to  have  had  a  halo  of  romance 
spread  around  it  by  its  great  possession.  Why  India  is 
on  the  whole  so  differently  regarded  among  ourselves, 
it  is  not,  I  think,  hard  to  understand.  It  is  at  once  too 
far  and  too  near.  Morally  and  politically,  it  is  very 
far  from  us  indeed.  There  are  doubtless  writers  and 
politicians  who  think  they  have  mastered  it  with 
little  trouble,  and  make  it  the  subject  of  easy  and 
shallow  generalisations  ;  but  the  thinker  or  scholar 
who  approaches  it  in  a  serious  spirit  finds  it  pregnant 
^vith  difficult  questions,  not  to  be  disentangled  with- 
out prodigious  pains,  not  to  be  solved  indeed  unless 
the  observer  goes  through  a  process  at  all  times  most 
distasteful  to  an  Englishman,  and  (I  will  not  say) 
reverses  his  accustomed  political  maxims,  but  revises 
them,  and  admits  that  they  may  be  qualified  under 
the  influence  of  circumstance  and  time.  On  the 
other   hand,    India    is  in  a  sense   near    to   us  ;    all 


RELATION   OF   INDIA   TO   ENGLAND.  207 

that  is  superficial  and  commonplace  in  it  is  pretty 
well  known.  It  has  none  of  the  interest  of  a  country 
barely  unveiled  to  geographers,  of  the  valley  of  the 
Oxus  or  the  basin  of  Lake  Tanganyika.  It  is  mixed 
up  with  the  ordinary  transactions  of  life,  with  the 
business  of  government,  with  debates  in  Parliament 
not  too  well  attended,  with  the  stock  exchange,  the 
cotton  market,  and  the  annual  relief  of  regiments. 
Nor  do  I  doubt  that  the  cause  of  the  evil  reputation 
of  India  which  extends  most  widely  is  the  constant 
and  frequent  complaints,  which  almost  everybody 
receives  from  relatives  settled  there,  of  the  monotony 
of  life  which  it  entails  upon  Europeans.  It  is  per- 
haps worth  while  observing  that  this  feeling  is  a 
permanent  and  not  unimportant  phenomenon,  and 
that  other  immigrants  into  India  from  colder  coun- 
tries, besides  modern  Englishmen,  have  spoken  of  the 
ennui  caused  to  them  by  its  ungenial  climate  and 
the  featureless  distances  of  its  plains.  The  famous 
founder  of  the  Mogul  dynasty,  the  Emperor  Baber, 
confesses  it  as  frankly  as  a  British  subaltern  might 
do,  and  speaks  of  India  in  words  which,  I  fear,  have 
been  too  frequently  echoed  mentally  or  on  paper. 
'  Hindostan,'  he  states,  after  closing  the  history  of  his 
conquest,  '  Hindostan  is  a  country  that  has  few  plea- 
sures to  recommend  it.  The  country  and  towns  are  ex- 
tremely ugly.  The  people  are  not  handsome.  .  .  The 
chief  excellency  of  Hindostan  if  that  it  is  a  very  large 


208       INFLUENCE  OF  STUDY  OF  SANSCRIT. 

country,   and   that   it   has  abundance    of  gold  and 
silver.' 

The  fact  that  knowledge  of  India  has  deeply 
affected  European  thought  in  many  ways  already, 
needs  (I  presume)  no  demonstration.  There  are 
many  here  who  could  explain  with  more  authority 
and  fulness  than  I  could,  the  degree  in  which  the 
discovery  of  Sanscrit  has  influenced  the  whole  science 
of  lano^uafje,  and  therefore  the  classical  studies  still 
holding  their  own  in  the  University.  It  is  probable 
that  all  moderately  intelligent  young  men  who  pur- 
sued those  studies  in  the  not  very  remote  time  before 
Englishmen  were  familiarly  acquainted  with  the 
structure  raised  by  German  scholars  on  the  founda- 
tions laid  by  our  countrymen  Jones  and  Colebrooke, 
had  some  theory  or  other  by  which  they  attempted 
to  connect  the  linguistic  phenomena  always  before 
them  ;  but  on  such  theories  they  can  only  now  look 
back  with  amazement.  To  those  again  who  can 
remember  the  original  publication  of  Mr.  Grote's 
History,  and  can  recall  the  impression  made  upon 
them  by  his  discussion  of  the  real  relation  which 
Greek  fable  bore  to  Greek  thought,  it  is  most  inte  • 
resting  to  reflect  that  almost  at  the  same  moment 
another  fruit  of  the  discovery  of  Sanscrit  was  attain- 
ing to  maturity,  and  the  remarkable  science  of  Com- 
parative Mythology  was  taking  form.  There  arc 
other  results,  not  indeed  of  knowledge  of  Indian  Ian- 


POLITICAL   EESULTS    OF    ORIENTAL    STUDIES.  20y 

guage,  but  of  knowledge  of  Indian  facts  and  phe- 
nomena, which  are  not  yet  fully  realised  ;  and  these 
will  be  the  principal  subject  of  this  Lecture.  In  the 
meantime,  before  we  quit  the  subject  of  language,  let 
me  say  that  Sanscritic  study  has  been  the  source  of 
certain  indirect  effects,  not  indeed  having  much  pre- 
tension to  scientific  character,  but  of  prodigious  prac- 
tical importance.  There  is  no  question  of  its  having 
produced  very  serious  political  consequences,  and  this 
is  a  remarkable  illustration  of  the  fact  that  no  great 
addition  can  be  made  to  the  stock  of  human  thought 
without  profoundly  disturbing  the  whole  mass  and 
moving  it  in  the  most  unexpected  directions.  For 
the  new  theory  of  Language  has  unquestionably  pro- 
duced a  new  theory  of  Race.  The  assumption,  it  is 
true,  that  affinities  between  the  tongues  spoken  by  a 
number  of  communities  are  conclusive  evidence  of 
their  common  lineao-e,  is  one  which  no  scholar  would 
accept  without  considerable  qualification  ;  but  this 
assumption  has  been  widely  made,  and  in  quarters 
and  among  classes  where  the  discoveries  out  of  which 
it  grew  are  very  imperfectly  appreciated  and  under- 
stood. There  seems  to  me  no  doubt  that  modern 
philology  has  suggested  a  grouping  of  peoples  quite 
unlike  anything  that  had  been  thought  of  before.  If 
you  examine  the  bases  proposed  for  common  nation- 
ality before  the  new  knowledge  growing  out  of  the 
study  of  Sanscrit  had  been  popularised  in  Europe,  you 

P 


210  MATERIALS   FOR   NEW   SCIENCE   IN   INDIA. 

will  find  them  extremely  unlike  those  which  are  no\^ 
advocated,  and  even  passionately  advocated,  in  parts 
of  the  Continent.  For  the  most  part  the  older  bases 
theoretically  su<!:gested  were  common  history,  common 
prolonged  subjection  to  the  same  sovereign,  common 
civilisation,  common  institutions,  common  religion, 
sometimes  a  common  language,  but  then  a  common 
vernacular  language.  That  peoples  not  necessarily 
understanding  one  another's  tongue  should  be  grouped 
together  politically  on  the  ground  of  linguistic  affini- 
ties assumed  to  prove  community  of  descent,  is  quite 
a  new  idea.  Nevertheless,  we  owe  to  it,  at  all  events 
in  part,  the  vast  development  of  German  nationality; 
and  we  certainly  owe  to  it  the  pretensions  of  the 
Russian  Empire  to  at  least  a  presidency  over  all 
Sclavonic  communities.  The  theory  is  perhaps 
stretched  to  the  point  at  which  it  is  nearest  breaking 
when  men,  and  particularly  Frenchmen,  speak  of  the 
Latin  race. 

India  has  given  to  the  world  Comparative  Philo- 
logy and  Comparative  Mythology  ;  it  may  yet  give 
us  a  new  science  not  less  valuable  than  the  sciences  of 
lanffuao-e  and  of  folk-lore.  I  hesitate  to  call  it  Com- 
parative  Jurisprudence  because,  if  it  ever  exists,  its 
area  will  be  so  much  wider  than  the  field  of  law. 
For  India  not  only  contains  (or  to  speak  more  accu- 
rately, did  contain)  an  Aryan  language  older  than 
any  other  descendant  of  the  common  mother-tongue, 


ISOLATION   OF   INDIA.  SlJ 

aud  a  variety  of  names  of  natural  objects  less  per- 
fectly crystallised  than  elsewhere  into  fabulous  per- 
sonages, but  it  includes  a  whole  world  of  Aryan 
institutions,  Aryan  customs,  Aryan  laws,  Aryan 
ideas,  Aryan  beliefs,  in  a  far  earlier  stage  of  growth 
and  development  than  any  which  survive  beyond  its 
borders.  There  are  undoubtedly  in  it  the  materials 
for  a  new  science,  possibly  including  many  branches. 
To  create  it  indeed,  to  give  it  more  than  a  beginning, 
will  require  many  volumes  to  be  written  and  many 
workers  to  lend  their  aid.  It  is  because  I  am  not 
without  hope  that  some  of  these  workers  will  be 
found  here  that  I  now  proceed  to  show,  not,  indeed, 
that  the  attempt  to  produce  such  a  science  will  suc- 
ceed, but  that  the  undertaking  is  conceivable  and 
practicable. 

But  first  let  me  try  to  give  some  sort  of  answer 
to  the  question  which  probably  has  occurred  to  many 
minds — why  is  it  that  all  things  Aryan,  the  chief 
part  of  the  heritage  of  the  greatest  of  races,  are  older 
in  India  than  elsewhere?  The  chief  secret,  a  very 
simple  one,  lies  probably  in  the  extreme  isolation  of 
the  country  until  it  was  opened  by  maritime  adven- 
ture. Approached  not  by  sea  but  by  land,  there  is 
no  portion  of  the  earth  into  which  it  is  harder  to 
penetrate.  Shut  in  by  the  Himalayas  and  their  off- 
shoots, it  lies  like  a  world  apart.  The  great  roads 
between   Western   and  Eastern    Asia   probably   lay 

p2 


212  ISOLATION   OF   INDIA. 

always  to  the  north,  as  they  did  in  the  tLne  of  Marcc 
Polo,  connecting  what  once  was  and  what  still  is  the 
seat  of  a  great  industrial  community — Asia  Minor 
and  China.  The  India  of  Herodotus  is  obviously  on 
the  hither  side  or  in  the  close  vicinity  of  the  Indus  ; 
the  sand  of  the  great  Indian  desert  which  lies  on  the 
other  bank  was  believed  to  extend  to  the  end  of  the 
world.  Megasthenes  (Straho,  xv,  1.  6)  cautioned  his 
readers  against  believing  stories  concerning  the  ancient 
history  of  the  Indians,  because  they  had  never  been 
conquered.  The  truth  is  that  all  immigrations  into 
India  after  the  original  Aryan  immigration,  and  all 
conquest  before  the  English  conquest,  including  not 
only  that  of  Alexander,  but  those  of  the  Mussulmans, 
affected  the  people  far  more  superficially  than  is 
assumed  in  current  opinions.  The  true  knowledge  of 
India  began  with  the  era  of  distant  navigation,  and 
even  down  to  our  fathers'  day  it  was  extraordinarily 
slight.  Even  when  maritime  adventure  did  reveal 
something  of  the  country,  it  was  only  the  coast  popu- 
lations which  were  in  any  degree  known.  It  is  worth 
while  pausing  to  remark  that  these  coast  populations 
have  very  materially  contributed,  and  still  contribute, 
to  form  the  ordinary  European  view  of  India.  The 
French  philosophical  writers  of  the  last  century,  whose 
opinions  at  one  time  exercised  directly,  and  still  exer- 
cise indirectly,  considerable  influence  over  the  fortunes 
of  mankind,  were  accustomed  to  theorise  largely  about 


COAST   P0PULATI0J7S.  213 

the  East;  but,  though  they  had  obtained  some  know- 
ledge  of  China  from  the  narratives  of  missionaries, 
they  obviously  knew  nothing  about  any  part  of  India 
except  the  coast.  The  '  Histoire  Philosophique  des 
Indes,'  a  lengthy  work  of  the  Abbe  Kaynal  and 
Diderot  which  is  said  to  have  done  more  than  any 
other  book  to  diffuse  those  notions  about  the  consti- 
tution of  human  society  which  had  vast  effect  on  the 
course  of  the  first  French  Revolution,  is  little  more, 
so  far  as  it  relates  to  India,  than  a  superficial  account 
of  European  dealings  with  the  populations  of  the 
coast ;  a  little  way  inland  the  writers  profess  to  have 
found  communities  living  in  a  state  of  nature  and 
innocence.  There  were  of  course  Englishmen  at  the 
end  of  the  eighteenth  century  who  knew  India  a  great 
deal  better  than  Raynal  and  Diderot  ;  but  there  is  a 
good  instance  of  the  common  limitation  of  English 
ideas  about  India  to  its  coast  in  a  work  which  was 
famous  in  our  own  day.  Mr.  Buckle,  in  the  General 
Introduction  to  his  '  History  of  Civilisation,'  has  de- 
rived all  the  distinctive  institutions  of  India  and  the 
peculiarities  of  its  people  from  their  consumption  of 
rice.  From  the  fact,  he  tells  us,  that  the  exclusive 
food  of  the  natives  of  India  is  of  an  oxygenous  rather 
than  a  carbonaceous  character,  it  follows  by  an  inev- 
itable law  that  caste  prevails,  that  oppression  is  rife, 
that  rents  are  high,  and  that  custom  and  law  are 
stereotyped.     The   passage  ought   to    be   a   caution 


214  COAST   POPULATIONS. 

against  overbold  generalisation  ;  for  it  unfortunately 
happens  that  the  ordinary  food  of  the  people  of  India 
is  not  rice.  It  is  a  product  of  the  coast,  growing  in 
the  deltas  of  great  rivers,  and  only  at  one  point 
of  the  country  extending  any  distance  inland.  And 
there  is  another  product  of  the  coast  of  India 
which  furnishes  some  of  the  best  intentioned  of 
our  countrymen  with  materials  for  a  rather  hasty 
generalisation  as  to  India  as  a  whole.  For  it  is  in  the 
cities  of  the  coast  and  their  neighbourhood  that  there 
has  sprung  up,  under  English  influence,  a  thirst  for 
knowledge,  a  body  of  opinions,  and  a  standard  of 
taste,  which  are  wholly  new  in  India.  There  you 
may  see  universities  thronged  like  the  European 
schools  of  the  later  middle  age.  There  you  may  ob- 
serve an  eagerness  in  the  study  of  Western  literature 
and  science  not  very  unlike  the  enthusiasm  of  Euro- 
pean scholars  at  the  revival  of  letters.  From  this 
part  of  India  come  those  most  interesting  samples  of 
the  native  race  who  from  time  to  time  visit  this 
country  ;  but  they  are  a  growth  of  the  coast,  and  there 
could  be  no  greater  mistake  than  to  generalise  from 
them  as  to  the  millions  upon  millions  of  men  who  fill 
the  vast  interior  mass  of  India. 

If  passing  beyond  the  fringe  of  British  civilisa- 
tion which  is  found  at  certain  points  of  the  Indian 
toasts,  you  enter  this  great  interior  block,  j^ou  find 
that  the  ideas  which  it  suggests  are  very  different 


CHAEACTER    OF   THE    INTERIOR.  215 

indeed  from  those  current  about  India  even  in  this 
country.     Such  ideas  have  httle  in  common  with  the 
apparent  belief  of  some  educated  persons  here  that 
Indians  require  nothing  but  School  Boards  and  Nor- 
mal Schools  to  turn  them  into  Englishmen,  and  very 
much  less  in  common  with  the  brutal   assumption  of 
the    English   vulgar   that   there   is  little    to  choose 
between  the  Indian  and  the  negro.     No  doubt  the 
social  state  there  to  be  observed  can  only  be  called 
Barbarism,  if  we  could  only  get  rid  of  unfavourable 
associations  with  the  word;  but  it  is  the  barbarism 
either  of  the  very  family   of  mankind   to  which  we 
belong,  or  of  races  which  have  accepted  its  chief  and 
most  characteristic  institutions.     It   is   a   barbarism 
which  contains  a  great  part  of  our  own  civilisatioUj 
with  its  elements  as  yet  inseparate  and  not  yet  un- 
folded.    All  this  interior  India  has  been  most  care- 
fully observed  and  described  by  English  functionaries 
from   the   administrative    point  of  view,   and   their 
descriptions  of  it  are  included  in  hundreds  of  reports, 
but   a   more  accessible  and  popular  account  of  the 
state  of  idea,  belief,  and  practice  at  the  very  centre 
of  this  great   group  of  countries  may  be  read  in  a 
series  of  most  instructive  papers  lately  published  by 
Mr.  Lyall,  a  gentleman  now  high  in  Indian  ofFce. 
(See  Note  A.)     The  province  he  describes,   Berar, 
is  specially  well  situated  for  such  observations,  for, 
though  relieved  from  internal  disturbance,  it  has  been 


216  ACTUAL   BRAHMINICAL   RELIGION. 

as  yet  very  imperfectly  brought  under  British  influ* 
ences,  being  only  held  by  the  British.  Government  in 
deposit  from  the  great  Mahometan  prince  of  the  South, 
the  Nizam.  There  is  no  doubt  that  this  is  the  real 
India,  its  barbarism  (if  I  must  use  the  word)  imper- 
ceptibly giving  way  in  the  British  territories  until  it 
ends  at  the  coast  in  a  dissolution  amid  which  some- 
thing like  a  likeness  of  our  own  civilisation  may  be 
discerned. 

I  spoke  of  the  comparative  preservation  of  primi- 
tive custom  and  idea  in  India  as  explicable  in  part 
through  the  geographical  position  of  the  country. 
But  no  reader  of  Mr.  Lyall's  papers  can  doubt  that 
another  powerful  preservative  has  been  the  influence 
of  Religion  and  Caste,  an  influence,  however,  of  which 
I  must  warn  my  hearers  that  they  will  gain  no  ac- 
curate conception  from  the  impressions  generally 
given  by  the  words  I  have  used.  European  scholars, 
having  hitherto  been  chiefly  interested  in  the  ancient 
languages  of  India  and  in  the  surprising  inferences 
suggested  by  them,  have  very  naturally  acquiesced 
in  the  statements  which  the  sole  literary  class  has 
made  about  itself  and  its  creed.  But  nothing  can 
give  a  falser  impression  of  the  actual  Brahminical 
religion  than  the  sacred  Brahminical  literature.  It 
represents  itself  as  an  organised  religious  system, 
whereas  its  great  peculiarity,  and  (I  may  add)  its 
chief  interest,  arises  from  its  having  no  organisatioi? 


EFFECTS   OF  BRAHMINISM   ON   OLDER   FAITHS.        217 

whatever.  Incidentally,  let  me  observe,  we  obtain  a 
much  more  vivid  impression  of  the  prodigious  effects 
upon  Western  Europe,  I  do  not  say  of  Christianity, 
but  of  an  institution  like  the  Christian  Church,  when 
we  have  under  our  observation  in  Central  India  a 
religion  no  doubt  inspiring  belief,  but  having  no 
organised  direction,  and  thus  debarred  from  making 
war  on  alien  faiths  and  superstitions.  Brahminism 
is  in  fact  essentially  a  religion  of  compromise.  It 
reconciles  itself  with  ancient  forms  of  worship,  and 
with  new  ones,  when  they  become  sufficiently  preva- 
lent, by  taking  them  up  into  itself  and  by  accepting 
the  fashionable  divinity  as  an  incarnation  of  Vishnu 
or  Siva.  Thus  Brahminism  does  not  destroy  but 
preserves  older  beliefs  and  cults,  and  with  them  the 
institutions  which  many  of  them  consecrate  and  hold 
together.  It  cannot  be  doubted  that  Central  India 
thus  reproduces  the  old  heathen  world  which 
Christianity  destroyed.  There  prevails  in  it  some- 
tiling  like  the  paganism  of  classical  antiquity,  and 
this  in  the  British  territories  shades  off  into  the 
paganism,  half  absorbed  in  philosophical  theory  or 
mystical  faith,  which  immediately  gave  way  to  the 
diffusion  of  the  Christian  creed.  In  the  countries 
described  by  Mr.  Lyall,  every  brook,  every  grove, 
every  jutting  rock,  has  its  divinity;  only  with  none 
of  them  is  there  any  association  of  beauty;  the 
genius  of  the   race,  radically  diff'erin;?   in  this   from 


818  DEIFICATION    OF    FORCfi. 

the  Hellenic  genius,  clothes  them  exclusively  with 
grotesque  or  terrible  forms.  What  is  more  to  my 
present  purpose,  every  institution,  every  pursuit, 
every  power  beneficent  or  maleficent,  is  consecrated 
by  a  supernatural  influence  or  presidency.  Thus 
ancient  practices  and  customs,  little  protected  by  law, 
have  always  been  protected  by  religion;  nor  would 
it  be  difiicult  to  obtain  the  same  protection  for  new 
laws,  if  sternly  enforced,  and  for  new  manifestations 
of  irresistible  authority.  I  am  persuaded  that,  if  the 
British  Government  of  India  were  not  the  organ  of 
a  free  and  Christian  community,  nothing  would  have 
been  easier  for  it  than  to  obtain  that  deification  and 
worship  which  have  seemed  to  some  so  monstrous 
when  they  were  given  to  the  Roman  Emperors.  In 
that  mental  atmosphere  it  would  probably  have 
grown  up  spontaneously ;  and,  as  a  matter  of  fact, 
some  well-known  Indian  anecdotes  narrate  the 
severity  which  has  had  to  be  used  in  repressing 
minor  and  isolated  mstances  of  the  same  tendency. 
One  brave  soldier  and  skilful  statesman  is  remem- 
bered in  India  not  only  for  his  death  at  the  head  of 
the  storming  party  which  had  just  made  its  way  into 
Delhi,  but  for  having  found  himself  the  centre  of  a 
new  faith  and  the  object  of  a  new  worship,  and  for 
having  endeavoured  to  coerce  his  disciples  into  dis- 
belief by  hearty  and  systematic  flogging. 

The  common  religious  sanction  binding  the  various 


ACTUAL   CH.^ACTER    OF   CASTE.  91« 

groups  of  native  Indian  society  together  finds  an  out- 
ward  and  practical  expression  in  the  usages  of  Ciste, 
Here  again  the  nearly  exclusive  attention  paid  in 
Europe  to  the  Brahrninical  literature  has  spread 
abroad  very  erroneous  ideas  of  a  remarkable  in- 
stitution. The  Brahrninical  theory  of  three  or  four 
universal  castes  has  certainly  considerable  indirect 
influence,  but  the  division  of  Hindoo  society  into 
accurately  defined  horizontal  strata,  if  it  ever  existed 
as  a  fact  (which  it  probably  did  not),  exists  no  longer. 
There  is  only  one  perfect  universal  caste,  that  of  the 
Brahmins  ;  there  are  a  certain  number  of  isolated 
dynasties  and  communities  pretending  to  belong  to 
the  second  of  the  theoretical  castes ;  but,  in  the 
enormous  majority  of  instances,  caste  is  only  the  name 
for  a  number  of  practices  which  are  followed  by  each 
one  of  a  multitude  of  groups  of  men,  whether  such  a 
group  be  ancient  and  natural,  or  modern  and  arti- 
ficial. As  a  rule,  every  trade,  every  profession,  every 
guild,  every  tribe,  every  clan  is  also  a  caste,  and  the 
members  of  a  caste  not  only  have  their  own  special 
objects  of  worship,  selected  from  the  Hindoo  pantheon 
or  adopted  into  it,  but  they  exclusively  eat  together 
and  exclusively  intermarry.  You  will  see  at  once 
that  a  solidity  is  thus  given  to  all  groups  of  men 
which  has  no  counterpart  in  the  Western  world, 
and  you  can  understand,  I  think,  without  di"*ficulty, 
how  it  is  that  all  the  old  natural  elements  of  societji 


220  TUE    COMPAEATIVE   METHOD    AND    rROrERTV. 

have  been  preserved  under  the  influence  of  caste  in 
extraordinary  completeness,  along  with  the  institu- 
tions and  ideas  which  are  their  appendage.  At  the 
same  time,  Mr.  Lyall  explains  that  the  process  of 
forming  castes  still  continues,  especially  sectarian 
castes.  A  new  sect,  increasing  in  numbers  and 
power,  becomes  a  new  caste.  Even  this  dissolution 
and  recombination  tends,  however,  on  the  whole  to 
preserve  the  ancient  social  order.  In  Western  Europe, 
if  a  natural  group  breaks  up,  its  members  can  only 
form  a  new  one  by  voluntary  agreement.  In  Central 
India  they  would  recombine  on  the  footing  and  on 
the  model  of  a  natural  family. 

Assuming  then  that  the  primitive  Aryan  groups, 
the  primitive  Aryan  institutions,  the  primitive  Aryan 
ideas,  have  really  been  arrested  in  India  at  an  early 
stage  of  development,  let  me  ask  whether  any,  and,  if 
BO,  what  sort  of  addition  to  our  knowledge  may  be 
expected  from  subjecting  these  phenomena  to  a  more 
scientific  examination,  that  is,  an  examination  guided 
by  the  method  which  has  already  led  to  considerable 
results  in  other  fields  of  comparative  enquiry.  I  will 
try  to  illustrate  the  answer  which  should  be  given  by 
taking  one  great  institution.  Property.  It  is  unneces- 
sary, I  suppose,  to  enlarge  on  its  importance.  The 
place  which  it  occupies  as  a  source  of  human  motive 
has  been  proclaimed  by  all  sorts  of  writers,  in  all 
kinds  of  languages,  in  every  mood  and  vein — gravely, 


THEORIES   OF   PROPERTY.  221 

sadly,  complacently,  sarcastically.  A  large  body  of 
religious  precept  and  moral  doctrine  clusters  round 
it,  and  in  our  day  the  fact  of  its  existence  has  been 
taken  as  the  basis  of  a  great  deductive  science.  Poli- 
tical Economy.  Yet  any  intelligent  man  who  will  be 
at  the  pains  to  ask  himself  seriously  what  he  knows 
about  its  origin  or  the  laws  or  mode  of  its  historical 
growth  will  find  that  his  knowledge  is  extraordinarily 
small.  The  best  economical  writers  expressly  decline 
to  discuss  the  history  of  the  institution  itself,  at  most 
observing  that  its  existence  is  for  the  good  of  the 
human  race.  Until  quite  recently  the  theories  ac- 
cepted concerning  the  early  history  of  Property  would 
scarcely  bear  a  moment's  examination.  The  popular 
account  of  it,  that  it  had  its  origin  in  a  state  of  nature, 
is  merely  a  way  of  giving  expression  to  our  own 
ignorance,  and  most  of  the  theories  which  till  lately 
had  currency  on  the  subject  are  in  reality  nothing 
more  than  restatements  of  this  view,  more  or  less 
ingenious. 

Now  here,  at  all  events,  there  is  antecedent  pro- 
bability that  something  new  may  be  learned  from 
Indian  observation  and  experience.  For  of  the  vast 
official  literature  produced  during  nearly  a  century 
by  functionaries  in  the  employment  of  the  Indian 
Government,  much  the  largest  part  is  filled  wi\h  a 
discussion  of  the  Eastern  forms  of  o-\vnership  and 
their  relation  to  those  of  the  West.     If  indeed  these 


?22  INDIAN   FORMS   OF   PROPERTY*. 

observers  had  written  upon  institutions  wholly  un- 
like ours,  their  papers  would  have  small  interest  for 
us.  If  Englishmen  settled  in  India  had  found  there 
kinds  of  property  such  as  might  be  attributed  to 
Utopia  or  Atlantis,  if  they  had  come  upon  actual 
community  of  goods,  or  an  exact  equality  of  all 
fortunes,  or  on  an  exclusive  ownership  of  all  things 
by  the  State,  their  descriptions  would  at  most  deserve 
a  languid  curiosity.  But  what  they  found  was  very 
like,  and  yet  appreciably  unlike,  what  they  had  left 
at  home.  The  general  aspect  of  this  part  of  social 
mechanism  was  the  same.  There  was  property,  great 
and  small,  in  land  and  moveables  ;  there  were  rent, 
profits,  exchange,  competition ;  all  the  familiar  econo- 
mical conceptions.  Yet  scarcely  one  of  them  exactly 
corresponded  to  its  nearest  Western  counterpart. 
There  was  ownership,  but  joint  ownership  by  bodies 
of  men  was  the  rule,  several  ownership  by  individuals 
was  the  exception.  There  was  the  rent  of  lands,  but 
it  had  to  be  reconciled  with  the  nearly  universal 
prevalence  of  fixity  of  tenure  and  the  consequent 
absence  of  any  market  standard.  There  was  a  rate 
of  profit,  but  it  was  most  curiously  under  the  in- 
fluence of  custom.  There  was  competition,  but  trade 
was  conducted  by  large  bodies  of  kinsmen  who  did 
not  compete  together  ;  it  was  one  large  aggregate 
association  which  competed  with  another.  The  ob- 
Bervations  of  these  facts  by  Anglo-Indian  functionaries 


INDIAN  DISCUSSIONS   ON   OWNEKSHIP.  22t 

are  more  valuable  than  their  speculations  on  them. 
Their  chief  desire  has  been  to  discover  how  the 
economical  phenomena  of  the  East  could  best  be  de- 
scribed in  the  economical  language  of  the  West,  and 
I  suppose  that  whole  volumes  have  been  written  on 
two  classes  of  these  phenomena  in  particular,  on  the 
question  whether  the  great  share  of  the  profits  of 
cultivation  taken  by  the  British  Government  of  India 
(like  all  Oriental  governments)  is  properly  called 
land-tax  or  rent,  and  on  the  question  whether  the 
protected  or  hereditary  tenancy  of  the  East  is  or  is 
not  a  violation  of  the  rights  of  property ;  or,  in  other 
words,  whether  it  can  be  reconciled  with  the  Western 
conception  of  ownership.  Of  these  sagacious  men, 
those  best  read  in  Western  literature  have,  on  the 
whole,  been  apt  to  borrow  the  habit  of  the  English 
political  economists,  and  to  throw  aside,  under  the 
name  of  friction,  all  the  extraneous  influences  which 
clo2  the  action  of  those  wheels  of  social  mechanism 
to  which  economical  science,  with  much  more  justifica- 
tion in  the  West  than  in  the  East,  confines  almost 
wholly  its  attention.  In  point  of  fact,  the  value  and 
importance  of  the  retarding  causes  thus  rejected 
could  not  have  been  understood  until  quite  lately. 
The  application  of  the  historical  method  to  property 
and  to  all  the  ideas  which  go  with  it,  is  among  the 
most  modern  of  undertakings.  During  the  last  five- 
and-twenty  years  German  enquirers  have  been  busy 


224  VALUE   OF   INDIAN  PHENOMENA. 

with  the  early  history  and  gradual  development  oi 
European  ownership,  ownership,  that  is  to  say,  of 
land.  But  the  Historical  Method  in  their  hands  hem 
not  yet  been  quickened  and  corrected  by  the  Com- 
parative Method,  nor  are  they  fully  as  yet  aware  that 
a  large  part  of  ancient  Europe  survives  in  India. 
They  are  thus  condemned  for  awhile  to  struggle  with 
the  difficulties  which  embarrassed  the  scholar  who 
speculated  on  the  filiation  and  mutual  relation  of 
languages  at  a  time  when  the  reality  of  a  Sanscrit 
literature  was  obstinately  discredited,  or  when  San- 
scrit was  believed  to  be  an  artificial  cryptic  dialect 
invented  by  the  Brahmins. 

The  first  step  towards  the  discovery  of  new  truth 
on  these  subjects  (and  perhaps  the  most  difficult  of 
all,  so  obstinate  are  the  prejudices  which  stand  in  the 
way)  is  to  recognise  the  Indian  phenomena  of  owner- 
ship, exchange,  rent,  and  price  as  equally  natural, 
equally  respectable,  equally  interesting,  equally 
worthy  of  scientific  observation,  with  those  of  Western 
Europe.  The  next  will  have  been  accomplished 
when  a  set  of  enquiries  now  actively  conducted  in  the 
eastern  parts  of  the  Continent  of  Europe  have  been 
carried  farther,  and  when  a  set  of  economical  facts 
strongly  resembling  those  familiar  to  Englishmen  in 
India  have  been  collected  from  Aryan  countries  never 
deeply  affected  by  the  Roman  Empire  on  the  one 
hand,  nor  by  Mahometanism  on  the  other — for  Ma- 


E.\ELY   HISTORY    OF   PROPERTY.  225 

hometanism,  of  which  the  influence  on  Indian  institu- 
tions and  customs  has  been  so  slight  as  to  be  hardly 
worth  taking  into  account,  has  elsewhere  by  its 
authority  as  a  mixed  body  of  religion  and  law  com- 
pletely transformed  the  character  of  whole  popula- 
tions. The  last  step  of  all  will  be  to  draw  the  proper 
inferences  from  the  close  and  striking  analogies  of 
these  widely  diffused  archaic  phenomena  to  the  an- 
cient forms  of  the  same  institutions,  social  forces,  and 
economical  processes,  as  established  by  the  written 
history  of  Western  Europe.  When  all  this  has  been 
done,  it  is  not  unsafe  to  lay  down  that  the  materials 
for  a  new  science  will  exist,  a  science  which  may 
prove  to  be  as  great  a  triumph  of  the  Comparatiye 
Method  as  any  which  it  has  hitherto  achieved.  I 
have  not  the  presumption  to  advance  any  very  posi- 
tive predictions  as  to  the  conclusions  at  which  it  will 
arrive,  but  there  is  not  much  immodesty  in  laying 
before  you,  briefly  and  in  general  language,  some  of 
the  results  to  which  modern  investigations  into  the 
history  of  the  all-important  institution  of  which  we 
have  been  speaking,  Property,  appear  to  be  at  present 
pointing. 

Whenever  a  comer  is  hfted  up  of  the  veil  which 
hides  from  us  the  primitive  condition  of  mankind, 
even  of  such  parts  of  it  as  we  know  to  have  been 
destined  to  civilisation,  there  are  two  positions,  now 
very  familiar  to  us,  which  seem  to  be  signally  falsified 

Q 


226  ANCIENT  JOINT   OWNERSHIP. 

by  all  we  are  permitted  to  see — All  men  are  brothers^ 
and  all  men  are  equal.  The  scene  before  us  is  rather 
that  which  the  animal  world  presents  to  the  mental 
eye  of  those  who  have  the  courage  to  bring  home  to 
themselves  the  facts  answering  to  the  memorable 
theory  of  Natural  Selection.  Each  fierce  little  com- 
munity is  perpetually  at  war  with  its  neighbour,  tribe 
with  tribe,  village  with  village.  The  never-ceasing 
attacks  of  the  strong  on  the  weak  end  in  the  manner 
expressed  by  the  monotonous  formula  which  so  often 
recurs  in  the  pages  of  Thucydides,  '  they  put  the 
men  to  the  sword,  the  women  and  children  they 
sold  into  slavery.'  Yet,  even  amid  all  this  cruelty 
and  carnage,  we  find  the  germs  of  ideas  which  have 
spread  over  the  world.  There  is  still  a  place  and  a 
sense  in  which  men  are  brothers  and  equals.  The 
universal  belligerency  is  the  belligerency  of  one  total 
group,  tribe,  or  village,  with  another;  but  in  the 
interior  of  the  groups  the  regimen  is  one  not  of 
conflict  and  confusion  but  rather  of  ultra-legality. 
The  men  who  composed  the  primitive  communities 
believed  themselves  to  be  kinsmen  in  the  most  literal 
sense  of  the  word  ;  and,  surprising  as  it  may  seem, 
there  are  a  multitude  of  indications  that  in  one  stao^e 
of  thought  they  must  have  regarded  themselves  as 
equals.  When  these  primitive  bodies  first  make  their 
appearance  as  landowners,  as  claiming  an  exclusive 
enjoyment  in  a  definite  area  of  land,  not  only  do  their 


MODERN   ORIGIN    OF   COMPETITION.  227 

shares  of  the  soil  appear  to  have  been  originally 
equal,  but  a  number  of  contrivances  survive  for  pre- 
serving the  equality,  of  which  the  most  frequent  is 
the  periodical  redistribution  of  the  tribal  domain. 
The  facts  collected  suggest  one  conclusion  which  may 
be  now  considered  as  almost  proved  to  demonstration. 
Property  in  Land,  as  we  understand  it,  that  is,  several 
ownership,  ownership  by  individuals  or  by  groups  not 
larger  than  families,  is  a  more  modern  institution  than 
joint  property  or  co-ownership,  that  is,  ownership  in 
common  by  large  groups  of  men  originally  kinsmen, 
and  still,  wherever  they  are  found  (and  they  are  still 
found  over  a  great  part  of  the  world),  believing  or 
assumino^  themselves  to  be  in  some  sense  of  kin  to 
one  another.  Gradually,  and  probably  under  the  in- 
fluence of  a  great  variety  of  causes,  the  institution 
familiar  to  us,  individual  property  in  land,  has  arisen 
from  the  dissolution  of  the  ancient  co-ownership. 

There  are  other  conclusions  from  modern  enquiry 
which  ought  to  be  stated  less  confidently,  and  several 
of  them  only  in  negative  form.  Thus,  wherever  we 
can  observe  the  primitive  groups  still  surviving  to  our 
day,  we  find  that  competition  has  very  feeble  play  in 
their  domestic  transactions,  competition  (that  is)  in 
exchange  and  in  the  acquisition  of  property.  This 
phenomenon,  with  several  others,  suggests  that  Com- 
petition, that  prodigious  social  force  of  which  the 
action   is    measured   by    political    economy,    is    oi 

a 'J 


228  EXCHANGEABLENESS    OF   LAND. 

relatively  modern  origin.  Just  as  the  conceptions  of 
human  brotherhood  and  (in  a  less  degree)  of  human 
equality  appear  to  have  passed  beyond  the  limits  of 
the  primitive  communities  and  to  have  spread  them- 
selves in  a  highly  diluted  form  over  the  mass  of  man- 
kind, so,  on  the  other  hand,  competition  in  exchange 
seems  to  be  the  universal  belligerency  of  the  ancient 
world  which  has  penetrated  into  the  interior  of  the 
ancient  groups  of  blood-relatives.  It  is  the  regulated 
private  war  of  ancient  society  gradually  broken  up 
into  indistinguishable  atoms.  So  far  as  property  in 
land  is  concerned,  unrestricted  competition  in  pur- 
chase and  exchange  has  a  far  more  limited  field  of 
action  even  at  this  moment  than  an  Englishman  or 
an  American  would  suppose.  The  view  of  land  as 
merchantable  property,  exchangeable  like  a  horse  or 
an  ox,  seems  to  be  not  only  modern  but  even  now 
distinctively  Western.  It  is  most  unreservedly  ac- 
cepted in  the  United  States,  with  little  less  reserve 
in  England  and  France,  but,  as  we  proceed  through 
Eastern  Europe,  it  fades  gradually  away,  until  in 
Asia  it  is  wholly  lost. 

I  cannot  do  more  than  hint  at  other  conclusions 
which  are  suggested  by  recent  investigation.  We 
may  lay  down,  I  think  at  least  provisionally,  that  in 
the  beginning  of  the  history  of  ownership  there  waa 
no  such  broad  distinction  as  we  now  commonly  draw 
between  political  and  proprietary  power,  between  the 


COMMUNISTIC  THEORIES.  229 

power  wMch  gives  the  right  to  tax  and  the  power 
which  confers  the  right  to  exact  rent.  It  would  seem 
as  if  the  greater  forms  of  landed  property  now  exist- 
ing represented  political  sovereignty  in  a  condition  of 
decay,  while  the  small  property  of  most  of  the  world 
has  grown — not  exclusively,  as  has  been  vulgarly 
supposed  hitherto,  out  of  the  precarious  possessions 
of  servile  classes — but  out  of  the  indissoluble  associa- 
tion of  the  status  of  freeman  with  a  share  in  the  land 
of  the  community  to  which  he  belonged.  I  think, 
again,  that  it  is  possible  we  may  have  to  revise  our 
ideas  of  the  relative  antiquity  of  the  objects  of  en- 
joyment which  we  call  moveables  and  immoveables, 
real  property  and  personal  property.  Doubtless  the 
great  bulk  of  moveables  came  into  existence  after 
land  had  begun  to  be  appropriated  by  groups  of  men  ; 
but  there  is  now  much  reason  for  suspecting  that 
some  of  these  commodities  were  severally  owned 
before  this  appropriation,  and  that  they  exercised 
great  influence  in  dissolving  the  primitive  collective 
ownership. 

It  is  unavoidable  that  positions  like  these,  stated 
as  they  can  only  be  stated  here,  should  appear  to 
some  paradoxical,  to  others  unimportant.  There  are 
a  few  perhaps  who  may  conceive  a  suspicion  that,  if 
property  as  we  now  understand  it,  that  is,  several 
property,  be  shown  to  be  more  modern,  not  only 
than  the  human  race  (which  was  long  ago  assumed). 


280  SEVERAL   PROPERTY   AND    CIVILISATION. 

but  than  ownership  in  common  (which  is  only 
beginning  to  be  suspected),  some  advantage  may  be 
gained  by  those  assailants  of  the  institution  itself 
whose  doctrines  from  time  to  time  cause  a  panic  in 
modern  Continental  society.  I  do  not  myself  think 
so.  It  is  not  the  business  of  the  scientific  historical 
enquirer  to  assert  good  or  evil  of  any  particular  insti- 
tution. He  deals  with  its  existence  and  develop- 
ment, not  with  its  expediency.  But  one  conclusion 
he  may  properly  draw  from  the  facts  bearing  on  the 
bubject  before  us.  Nobody  is  at  liberty  to  attack 
several  property  and  to  say  at  the  same  time  that  he 
values  civilisation.  The  history  of  the  two  cannot  be 
disentangled.  Civilisation  is  nothing  more  than  a 
name  for  the  old  order  of  the  Aryan  world,  dissolved 
out  perpetually  re-constituting  itself  under  a  vast 
variety  of  solvent  influences,  of  which  infinitely  the 
most  powerful  have  been  those  w^hich  have,  slowly, 
and  in  some  parts  of  the  world  much  less  perfectly 
than  others,  substituted  several  property  for  coUectire 
ownership. 

If  such  a  science  as  I  hav^e  endeavoured  to  shadow 
forth  in  this  Lecture  is  ever  created,  if  the  Compara- 
tive Method  applied  to  laws,  institutions,  customs, 
ideas,  and  social  forces  should  ever  give  results 
resembling  those  given  by  Comparative  Philology  and 
Comparative  Mythology,  it  is  impossible  that  the  con- 
sequences should   be  insignificant.     No  knowledge. 


THE   COMPAEATIVE   METHOD    AST)    CUSTOM.  231 

uew  and  true,  can  be  added  to  the  mental  stock  of 
mankind  without  effects  penetrating  deeply  and  ra- 
mifying widely.  It  is  conceivable  that,  as  one  result, 
we  of  Western  Europe  might  come  to  understand 
ourselves  better.  We  are  perhaps  too  apt  to  consider 
ourselves  as  exclusively  children  of  the  age  of  free- 
trade  and  scientific  discovery.  But  most  of  the 
elements  of  human  society,  like  most  of  that  which 
goes  to  make  an  individual  man,  come  by  inheri- 
tance. It  is  true  that  the  old  order  changes,  yielding 
place  to  new,  but  the  new  does  not  wholly  consist  of 
positive  additions  to  the  old  ;  much  of  it  is  merely 
the  old  very  slightly  modified,  very  slightly  dis- 
placed, and  very  superficially  recombined.  That 
we  have  received  a  great  legacy  of  ideas  and  habits 
from  the  past,  most  of  us  are  at  least  blindly  con- 
scious •  but  no  portion  of  the  influences  acting  on  our 
nature  has  been  less  carefully  observed,  and  they 
have  never  been  examined  from  the  scientific  point 
of  view.  I  conceive  that  the  investigations  of  which 
I  have  been  speaking  might  throw  quiie  a  new  Hght 
on  this  part  of  the  social  mechanism. 

As  one  consequence  of  a  new  method  of  enquiry, 
I  believe  that  some  celebrated  maxims  of  public 
policy  and  private  conduct,  which  contain  at  most  a 
portion  of  truth,  might  be  revised  and  corrected. 
Among  these  I  do  not  hesitate  to  place  the  famous 
Greatest  Happiness  principle  of  Bentham.     In  spite 


232  BENTHAMISM. 

of  the  conventional  obloquy  attaching  to  his  name, 
and  strong  as  is  the  reluctance  to  accept  the  greatest 
happiness  of  the  greatest  number  as  the  standard  of 
morality,  no  observant  man  can  doubt  that  it  is  fast 
taking  its  place  in  the  modern  world  as  the  regulative 
principle  of  all  legislation.  Yet  nobody  can  carefully 
examine  the  theory  of  human  nature  which  it  implies 
without  seeing  that  it  has  great  imperfections,  and 
that  unless  some  supplementary  qualifying  principles 
be  discovered,  a  host  of  social  experiments  will  bring 
with  them  a  vast  measure  of  disappointment.  For 
these  qualifications  I  look  forward  far  less  to  dis- 
cussions on  moral  philosophy  as  it  is  at  present 
understood,  than  to  some  such  application  of  the 
comparative  method  to  custom,  idea,  and  motive  as 
I  have  tried  to  recommend.  Another  illustration  of 
my  meaning  I  will  take  from  Political  Economy. 
The  science  consists  of  deductions  from  the  assump- 
tion that  certain  motives  act  on  human  nature  with- 
out check  or  clog.  There  can  be  no  question  of  the 
scientific  propriety  of  its  method,  or  of  the  greatness 
of  some  of  its  practical  achievements  ;  yet  only  its 
bigots  assert  that  the  motives  of  which  it  takes 
account  are  the  only  important  human  motives,  or 
that  whether  they  are  good  or  bad,  they  are  not 
seriously  impeded  in  their  operation  by  counteracting 
forces.  All  kinds  of  irrelevant  charges,  or  charges 
weak  to  puerility,  have  been  brought  against  po^.iticaJ 


POLITICAL   ECONOiiy.  23d 

economy  ;  but  no  doubt  the  best  of  its  expositors 
do  occasionally  lay  themselves  open  to  the  observa- 
tion that  they  generalise  to  the  whole  world  from  a 
part  of  it ;  that  they  are  apt  to  speak  of  their  pro- 
positions as  true  a  'priori^  or  from  all  time  ;  and  that 
they  greatly  underrate  the  value,  power,  and  interest 
of  that  great  body  of  custom  and  inherited  idea 
which,  according  to  the  metaphor  which  they  have 
borrowed  from  the  mechanicians,  they  throw  aside  as 
friction.  The  best  corrective  which  could  be  given 
to  this  disposition  would  be  a  demonstration  that  this 
'  friction '  is  capable  of  scientific  analysis  and  scien- 
tifi.c  measurement  ;  and  that  it  will  be  shown  to  be 
capable  of  it  I  myself  firmly  believe. 

For  some  obvious  reasons,  I  refrain  from  more 
than  a  mere  reference  to  one  set  of  effects  which  ob- 
servation of  India  might  have  on  European  thought, 
those  which  might  be  conceived  as  produced  by  the 
spectacle  of  that  most  extraordinar}^  experiment,  the 
British  government  of  India,  the  virtually  despotic 
government  of  a  dependency  by  a  free  people.  Here, 
I  only  venture  to  assert  that  observation  of  the  British 
Indian  political  system  might  throw  a  flood  of  new 
light  on  some  obscure  or  much  misunderstood  epochs 
of  history.  I  take  an  example  in  the  history  of  the 
Romans  under  the  Empire.  It  has  been  written  with 
much  learning  and  acumen  ;  yet  it  is  wonderful  how 
little  popular  knowledge  has  advanced  since  Gibbon 


284  INDIA   AND   THE  ROMAN   EMPIRE. 

published  the  '  Decline  and  Fall.'  In  our  populat 
literature  the  old  commonplaces  hold  their  ground  ; 
the  functionaries  are  described  as  everywhere  oppres- 
sive and  corrupt,  the  people  as  enervated,  the  taxa- 
tion as  excessive,  the  fortunes  of  the  State  are  treated 
as  wholly  bound  up  with  the  crimes  and  folUes  of  the 
Emperors.  The  incompleteness,  in  some  respects 
the  utter  falsity  of  the  picture,  is  well  known  to  the 
learned,  yet  even  they  have  perhaps  hardly  made 
enough  of  the  most  instructive  parallels  furnished  by 
the  British  government  of  India.  The  remark  has 
been  made  that  the  distinction  between  the  provinces 
of  the  Senate  and  the  provinces  of  the  Prince  seemed 
to  be  the  British  Indian  distinction  between  a  Regula- 
tion and  a  Non- Regulation  province,  but  few  know 
how  curiously  close  is  the  analogy,  and  how  the  his- 
tory of  the  competing  systems  has  run  precisely  the 
same  course.  Few,  again,  have  quite  understood 
how  the  ordinary  administration  of  a  Native  Indian 
State,  or  of  a  British  Province  under  semi-military 
rule,  throws  light  upon  the  condition  of  the  Jewish 
Commonwealth  during  that  era  of  supreme  interest 
and  importance  when  it  was  subject  to  the  Romans, 
and  yet  not  completely  incorporated  with  the  Empire. 
What  may  be  called  the  secular  portions  of  the  Acts 
of  the  Apostles  come  strangely  home  to  Indian  func- 
tionaries. They  know  better  than  other  men  what 
sort  of  princes  were   Herod  Antipas  and  Agrippa  ; 


INDIA   AND   JUD.EA.  2.% 

how  natural  to  different  forms  of  the  official  mind  is 
the  temper  of  Festus  on  the  one  hand  and  the  temper 
of  Gallic  on  the  other  ;  how  steady  is  the  effort  of 
priestly  classes  to  bring  secular  authority  to  their 
side  ;  how  very  important  and  turbulent  an  interest 
is  that  of  the  makers  of  silver  shrines  for  the  goddess ; 
and  how  certainly,  if  the  advent  of  Christian 
missionaries  were  to  cause  a  riot  in  an  Indian  city, 
the  Deputy  Commissioner  would  send  for  the  leading 
citizens  and,  in  very  nearly  the  words  of  the  town- 
clerk  of  Ephesus,  would  tell  them  that,  if  they  had 
anything  to  complain  of,  there  were  Courts  and  the 
Penal  Code.  Turning  to  more  general  topics,  let  me 
say  that  a  problem  now  much  perplexing  historical 
scholars  is  simplified  by  experience  of  India.  How 
was  it  that  some  institutions  of  the  Provinces  were 
crushed  down  and  levelled  by  the  Roman  Imperial 
system,  while  others,  derived  from  the  remotest 
Aryan  antiquity,  were  kept  in  such  preservation 
that  they  easily  blended  with  the  institutions  of 
the  wilder  Aryan  races  who  broke  into  the  Empire? 
British  India  teaches  us  that  part  of  the  destroying 
process  is  inevitable;  for  instance,  the  mere  establish- 
ment of  a  Court  of  Justice,  such  as  a  Roman  Court 
was,  in  Gaul  would  alter  and  transform  all  the  cus- 
tomary rights  of  the  Gallic  Celts  by  arming  them 
witii  a  sanction.  On  the  other  hnnd,  certam  insti- 
tution s  of  a  primitive  people,  theu'  corporations  and 


236  BRITISH    GOVERNMENT   OF    INDIA. 

village-communities,  will  always  be  preserved  by  a 
suzerain  state  governing  them,  on  account  of  the 
facilities  which  they  afford  to  civil  and  fiscal  admini- 
stration. Both  the  good  and  the  evil  of  the  Roman 
Empire  are  probably  reproduced  in  British  India. 
There  are  the  almost  infinite  blessings  of  the  Pax 
Britannica,  and  an  enormous  growth  of  wealth,  com- 
fort, and  material  happiness  ;  but  there  are  some 
drawbacks,  and  among  them  no  doubt  is  the  tendency 
of  a  well-intentioned,  and,  on  the  whole,  successful 
government,  to  regard  these  things  as  the  sum  of  all 
which  a  community  can  desire,  and  to  overlook  the 
intangible  moral  forces  which  shake  it  below  the 
surface. 

From  whatever  point  of  view  India  is  examined, 
if  only  it  be  carefully  and  conscientiously  examined, 
one  consequence  must,  I  think,  certainly  follow. 
The  difficulty  of  the  experiment  of  governing  it  will 
be  better  understood,  and  possibly  the  undertaking 
will  be  regarded  with  more  consideration.  The 
general  character  of  this  difficulty  may  be  shortly 
stated.  There  is  a  double  current  of  influences 
playing  upon  this  remarkable  dominion.  One  of 
these  currents  has  its  origm  in  this  country,  begin- 
iimg  in  the  strong  moral  and  political  convictions  of 
a  free  people.  The  other  arises  in  India  itself,  en- 
gendered among  a  dense  and  dark  vegetation  of 
primitive  opinion,  of  prejudice  if  you  please,   stub- 


OBSTINACY    OF   NATIVE    PEEJTJDICE.  237 

bornly  rooted  in  the  debris  of  the  past.  As  has 
been  truly  enough  said,  the  British  rulers  of  India 
are  like  men  bound  to  make  their  watches  keep  true 
time  in  two  longitudes  at  once.  Nevertheless  the 
paradoxical  position  must  be  accepted.  If  they  are 
too  slow,  there  will  be  no  improvement.  If  they  are  too 
fast,  there  will  be  no  security.  The  true  solution  of 
the  problem  will  be  found,  I  believe,  in  some  such 
examination  and  classification  of  Indian  phenomena 
as  that  of  which  I  have  been  venturing  to  affirm  the 
possibility.  Those  who,  guided  solely  by  Western 
social  experience,  are  too  eager  for  innovations  which 
seem  to  them  indistinguishable  from  improvements, 
wiU  perhaps  be  overtaken  by  a  wholesome  distrust 
when  they  see  in  institutions  and  customs,  which 
would  otherwise  appear  to  them  ripe  for  destruction, 
the  materials  of  knowledge  by  which  the  Past,  and  to 
some  extent  the  Present,  of  the  West  may  be  inter- 
preted. On  the  other  hand,  though  it  be  virtually 
impossible  to  reconcile  the  great  majority  of  the 
natives  of  India  to  the  triumph  of  Western  ideas, 
maxims,  and  practices,  which  is  nevertheless  inevi' 
table,  we  may  at  all  events  say  to  the  best  and  most 
intelligent  of  them  that  we  do  not  innovate  or  destroy 
in  mere  arrogance.  We  rather  change  because  we 
cannot  help  it.  Whatever  be  the  nature  and  value 
of  that  bundle  of  influences  which  we  call  Progress, 
nothing  can  be  more  certain  than  that,  when  a  society 


238  HELLENIC   ORIGIN   OF  PROGRESS. 

is  once  touched  by  it,  it  spreads  like  a  contagion 
Yet,  so  far  as  our  knowledge  extends,  there  waa 
only  one  society  in  which  it  was  endemic  ;  and  put- 
ting that  aside,  no  race  or  nationality,  left  entirely  to 
itself,  appears  to  have  developed  any  very  great  in- 
tellectual result,  except  perhaps  Poetry.  Not  one  of 
those  intellectual  excellencies  which  we  regard  as 
characteristic  of  the  great  progressive  races  of  the 
world — not  the  law  of  the  Romans,  not  the  philoso- 
phy and  sagacity  of  the  Germans,  not  the  luminous 
order  of  the  French,  not  the  political  aptitude  of  the 
English,  not  that  insight  into  physical  nature  to 
which  all  races  have  contributed — would  apparently 
have  come  into  existence  if  those  races  had  been  left 
to  themselves.  To  one  small  people,  covering  in  its 
original  seat  no  more  than  a  handsbreadth  of  terri- 
tory, it  was  given  to  create  the  principle  of  Progress, 
of  movement  onwards  and  not  backwards  or  down- 
wards, of  destruction  tending  to  construction.  That 
people  was  the  Greek.  Except  the  blind  forces  of 
Nature,  nothing  moves  in  this  world  which  is  not 
Greek  in  its  origin.  A  ferment  spreading  from  that 
source  has  vitalised  all  the  great  progressive  races  of 
mankind,  penetrating  from  one  to  another,  and  pro- 
ducinsr  results  accordant  with  its  hidden  and  latent 
genius,  and  results  of  course  often  far  greater  than 
any  exhibited  in  Greece  itself.  It  is  this  principle 
of  prooress  which  we  Englishmen  are  communicating 


EXGLISIl    INFLUENCE    IN   INDIA.  239 

to  India.  We  did  not  create  it.  We  deserve  no 
special  credit  for  it.  It  came  to  us  filtered  through 
many  different  media.  But  we  have  received  it;  and 
as  we  have  received  it,  so  we  pass  it  on.  There  is  no 
reason  why,  if  it  has  time  to  work,  it  should  not 
develope  in  India  effects  as  wonderful  as  in  any  other 
of  the  societies  of  mankind. 


ADDRESS  TO   UNIVERSITY  OF  CALCUTTA.^ 

Those  Members  of  tlie  Senate  who  have  been  con- 
nected with  our  University  since  its  foundation,  will 
not  be  surprised  if,  in  what  I  have  to  say  to  you,  I 
depart  in  some  degree  from  the  addresses  of  former 
Vice-Chancellors.  I  have  obtained  from  the  Registrar 
copies  of  those  addresses,  so  far  as  they  have  been 
reported,  and  I  see  that  they  are  principally  devoted 
to  explaining  to  the  Native  Students,  and  through 
them  to  the  Natives  of  India  generally,  what  is  the 
nature  of  a  University,  and  to  impressing  on  them 
the  value  of  the  distinctions  it  confers.  It  is  not,  I 
think,  necessary  to  dwell  any  longer  on  those  topics  ; 
indeed  I  am  not  sure  that  more  harm  than  good 
would  not  be  done  by  my  dwelling  on  them.  There 
is  now  more  evidence  than  enough  that  our  University 
has  taken  root.  I  have  seen  it  stated  that  the  in- 
crease in  the  numbers  of  the  older  English  Univer- 
sities is  about  six  per  cent. ;  but  the  increase  of  the 
University  of  Calcutta  is  no  longer  expressed   by 

*  (Delivered  before  the  Senate,  March  1864.) 


NUMBER    OF   UXIYEESITY   STUDENTS.  241 

taking  a  percentage ;  it  is  not  even  expressed  by 
saying  that  our  numbers  have  doubled  or  trebled. 
The  number  of  entrances  has  positively  sextupled 
since  the  foundation  of  the  University  six  years  ago, 
which  is  a  rate  of  growth  never  seen  out  of  the 
tropics.  It  is  easy  to  be  wise  after  the  event; 
but  I  think  I  could  have  predicted  this.  Know- 
ing as  I  do  how  deeply  the  taste  for  University 
distinctions  penetrates  even  in  England,  although 
there  it  has  to  compete  with  the  almost  infinitely 
varied  and  multiplied  forms  which  Enghsh  enterprise 
assumes,  I  think  I  could  have  foreseen  that  a  society 
like  the  native  society  of  Bengal — a  society  whose 
faults  no  less  than  its  excellencies  lie  on  the  side  of 
mental  acuteness,  and  which  from  its  composition 
and  circumstances  has  comparatively  few  facilities 
for  the  exercise  of  activity — I  could  have  foreseen 
that  such  a  society  could  be  stirred  to  its  inmost  depths 
by  an  institution  which  conferred  visible  and  tangible 
rewards  on  the  early  and  sometimes,  it  is  to  be 
feared,  the  precocious  display  of  intellectual  ability. 
What  now  remains  to  be  done  is  not  so  much  to 
stimulate  the  ambition  which  seeks  to  gratify  itself 
by  a  University  degree  or  honour,  as  to  make  pro- 
vision that  those  honours  and  degrees  are  really  the 
symbols  and  the  witnesses  of  solid  acquirements. 
My  predecessors  have,  I  see,  striven  to  bring  out  the 
points  of  similarity  between  this  University  and  the 


242  ENGLISH   AND    INDIAN    UNIVERSITIES. 

Universities  of  England.  We  should  merely  be 
Imitating  their  external  and  temporary  characteristica 
if  we  omitted  to  follow  them  in  that  one  characteristic 
which  has  redeemed  all  their  shortcomings — the 
thoroughness  of  their  tests  and  the  conscientiousness 
of  their  teaching.  It  would  be  vain  to  deny,  and  I 
am  sure  that  I  do  not  care  to  deny,  that  Oxford  and 
Cambridge  have  in  time  past  been  guilty  of  many 
faults  both  of  omission  and  of  commission.  They 
have  failed  to  teach  much  which  they  ought  to  have 
taught,  and  taught  much  which  they  ought  not  to 
have  taught  ;  but  whatever  they  did  teach,  they 
have  taught  with  a  stern  and  severe  completeness. 
Their  weak  side  has  been  intolerance  of  new  subjects 
of  thought  ;  their  strong  side  has  been  their  in- 
tolerance of  superficiality.  It  is  this  direction 
which  all  our  future  efforts,  the  efforts  both  of 
the  University  and  of  all  the  Colleges  affiliated  to  it, 
ouaht  to  follow  ;  and  this  direction  has,  I  am 
happy  to  say,  been  in  fact  followed  in  those  alterations 
of  our  course  to  which  the  Senate  has  recently  given 
its  sanction — alterations  of  which  the  principal  credit 
belongs,  as  I  am  sure  all  associated  with  him  will 
allow,  to  my  immediate  predecessor  Mr.  Erskine 
One  great  step  forwards  has  been  made  in  the 
substitution,  of  course  the  partial  and  gradual 
substitution,  of  classical  languages  for  vernacular 
or  spoken  languages,  as  subjects  of  examination,     J 


INDIAN   CLASSICAL    AND   VERNACULAR   LANGUAGES.     243 

will  not  trouble  you  with  all  the  grounds  on  which 
this  reform  is  justified.  If  you  wish  to  understand 
them  thoroughly,  I  commend  you  to  the  published 
writings  of  the  accomplished  scholar — whom  I  am 
proud  to  call  my  friend — who  is  Vice -Chancellor  of 
the  University  of  Bombay.^  But  independently  of 
the  difficulty  of  examining  in  languages  many  of 
which  have  no  true  literature,  which  have  only  a  fac- 
titious literature,  a  literature  of  translations,  you 
must  see  what  a  premium  is  placed  upon  flimsiness  in 
knowledge  when  a  young  man  is  examined  in  a  spoken 
dialect,  which  is  picked  up,  half  unconsciously,  in 
conversation  and  by  the  ear,  against  another  young 
man  who  is  examined  in  one  of  ihose  classical  lan- 
guages which,  before  they  are  mastered,  bring  out  the 
strongest  powers  of  the  memory  and  the  reason. 
There  is  really  nothing  in  common  between  the 
linguistic  attainments  of  a  student  who  passes  or 
obtains  honours  in  Greek,  or  Sanscrit,  or  Arabic, 
and  those  of  one  who  passes  in  Burmese  or  Oorya,  or 
— ^for  this  is,  to  a  certain  extent,  true  of  those  lan- 
guages— even  in  Bengali  or  Hindustani. 

I  have  spoken  of  superficiality  as  our  great  danger. 
But  do  not  suppose  that  I  am  insinuating  anything  with 
respect  to  the  actual  performances  of  the  students. 
The  Registrar  has  furnished  me  with  some  samples 

*  Sir  Alexander   Grant,  now   Principal  of  the  University   of 
Edinburgh. 

s  2 


944  NATIVE   ENGLISH. 

of  the  papers  which  contain  the  answers.  My  im* 
pression,  which  coincides,  I  believe,  with  that  of  the 
Examiners,  is  that,  in  those  subjects  in  which  high 
proficiency  may  reasonably  be  expected,  the  evidence 
of  industry,  quickness  and  clearness  of  head,  is  not 
very  materially  smaller  than  the  proof  of  similar 
qualities  furnished  by  a  set  of  English  examination 
papers.  Superficiality  will  to  some  extent  form  part 
of  the  results  of  every  examination,  but  I  cannot 
conscientiously  say  tliat  I  have  seen  much  more  of 
it  here  than  in  the  papers  of  older  Universities. 
And  now,  as  I  am  on  this  topic,  I  will  observe  that 
there  is  one  characteristic  of  these  papers  which  has 
struck  me  very  forcibly.  It  is  the  extraordinary 
ambition  of  the  Native  Student  to  write  the  best — 
perhaps  I  should  rather  say  the  finest — English.  In 
some  cases  the  attempt  has  been  singularly  successful; 
in  others  it  has  failed,  and  I  think  I  may  do  some 
good  to  the  Native  Students  present  if  I  say  why  I 
consider  it  has  failed.  It  has  failed,  then,  because 
the  attempt  has  been  too  consciously  and  dehberately 
made.  Of  course  I  do  not  forget  that  these  Students 
are  writing  in  a  foreign  tongue,  and  that  their  per- 
formances are  justly  compared  only  with  those  Latin 
themes  which  some  of  the  gentlemen  around  me  have 
written  in  their  youth.  But  on  the  other  hand,  the 
English  of  a  Bengali  lad  is  acquired  for  permanent 


NATIVE   ENGLISH.  248 

and  practical  purposes,  to  be  written  aid  spoken  to, 
and  among,  those  who  have  written  and  spoken  it 
from  their  infancy.  Under  such  circumstances, 
Enghsh  can  only  be  well  written  by  following  the 
golden  rule  which  Englishmen  themselves  follow  or 
ought  to  follow,  and  that  rule  is  never  to  try  de- 
liberately to  write  it  well.  Depend  upon  it,  no  man 
ever  wrote  well  by  striving  too  hard  to  write  well. 
What  you  should  regard,  is  not  the  language  but  the 
thought,  and  if  the  thought  be  clearly  and  vividly 
conceived,  the  proper  diction,  if  the  writer  be  an 
educated  man,  will  be  sure  to  follow.  You  have 
only  to  look  to  the  greatest  Masters  of  English  style 
to  satisfy  yourselves  of  the  truth  of  what  I  have  said. 
Take  the  first  illustration  which  always  suggests 
itself  to  an  Englishman,  and  look  at  any  one  page  of 
Shakespeare.  After  you  have  penetrated  beneath  the 
poetry  and  beneath  the  wit,  you  will  find  that  the 
page  is  perfectly  loaded  with  thought ;  and  so,  you 
may  depend  upon  it,  it  will  always  be  at  all  times  and 
with  all  writers.  The  more  you  read,  the  more  con- 
vinced will  you  be  that  the  finest  fancies  are  formed, 
as  diamonds  are  said  to  be  formed,  under  the  pressure 
of  enormous  masses  of  thought.  The  opposite 
process,  that  of  trying  to  bring  in  at  all  hazards  some 
favourite  phrase  or  trick  of  language,  will  only  lead 
you  to  a  spurious  and  artificial  result.  I  have  said 
so  much  as  this,  because  what  I  have  read  and  heard 


240  DEATH    OF   LORD    ELGIN. 

leaves  me  no  doubt  that  the  accomplishment  of 
writing  good  EngUsh  is  something  which  lies  very 
near  to  the  heart  of  the  Native  Students. 

I  have  now  to  address  myself  to  matters  which  are 
of  equal  interest  to  all  of  us,  to  the  events  which 
have  marked  the  history  of  the  University  during 
the  year.  The  most  conspicuous  of  these  events  is 
the  calamity  which  deprived  us  of  our  Chancellor, 
as  it  did  India  of  its  Viceroy.  I  am  very  sensible 
that,  in  speaking  to  the  Members  of  the  University  of 
Lord  Elgin,  I  must  use  the  same  language  which  all 
who  were  associated  with  him  are  obliged  to  use  of 
his  government  of  India — that  he  died  too  soon  for 
much  visible  proof  to  be  given  of  the  good  intentions 
of  which  his  heart  was  full.  What  I  have  to  say  of 
him  with  more  particular  relation  to  the  University, 
I  will  postpone  for  a  moment  or  two,  and  I  pass  to 
another  mcident  of  the  year's  history,  of  which  I 
could  almost  be  contented  to  say  that  no  heavier 
blow  has  fallen  on  the  University  since  its  foundation 
— I  mean  the  final  departure  from  India  of  our 
colleague,  Dr.  DufF.  It  would  be  easy  for  me  to 
enumerate  the  direct  services  which  he  rendered  to 
us  by  aiding  us,  with  unflagging  assiduity,  in  the 
regulation,  supervision,  and  amendment  of  our  course 
of  study;  but,  in  the  presence  of  so  many  Native 
Students  and  Native  Gentlemen  who  viewed  him 
with  the  deepest  regard   and   admiration,    although 


MISSIONARIES    IN    INDIA.  iiil 

they  knew  that  his  every-day  wish  and  prayer  was 
to  overthrow  their  ancient  faith,  I  should  be  ashamed 
to  speak  of  him  in  any  other  character  than  the  only 
one  which  he  cared  to  fill — the  character  of  a 
Missionary.  Regarding  him,  then,  as  a  Missionary,  the 
quahties  in  him  which  most  impressed  me — and  you 
will  remember  that  I  speak  of  nothing  except  what  I 
myself  observed — were  first  of  all  his  absolute  self- 
sacrifice  and  self-denial.  Religions,  so  far  as  I  know, 
have  never  been  widely  propagated,  except  by  two 
classes  of  men,  by  conquerors  or  by  ascetics.  The 
British  Government  of  India  has  voluntarily  (and  no 
doubt  wisely)  abnegated  the  power  which  its  material 
force  conferred  on  it,  and,  if  the  country  be  ever 
converted  to  the  religion  of  the  dominant  race,  it  will 
be  by  influences  of  the  other  sort,  by  the  influence 
of  Missionaries  of  the  type  of  Dr.  Dufi".  Next  I 
was  struck — and  here  we  have  the  point  of  contact 
between  Dr.  Dufl''s  religious  and  educational  life — 
by  his  perfect  faith  in  the  harmony  of  truth.  I  am 
not  aware  that  he  ever  desired  the  University  to 
refuse  instruction  in  any  subject  of  knowledge, 
because  he  considered  it  dangerous.  Where  men  of 
feebler  minds  or  weaker  faith  would  have  shrunk 
from  encouraging  the  study  of  this  or  that  classical 
lano'uao'e,  because  it  enshrined  the  archives  of  some 
antique  superstition,  or  would  have  refused  to 
stimulate  proficiency  in  this  or  that  walk  of  physical 


246  MISSIONAEIES   IN  INDIA. 

science,  because  its  conclusions  were  supposed  tc 
lead  to  irreligious  consequences,  Dr.  Duff,  believing 
his  own  creed  to  be  true,  believed  also  that  it  had 
the  great  characteristic  of  truth — that  characteristic 
which  nothing  else  except  truth  possesses — that  it 
can  be  reconciled  with  everything  else  which  is  also 
true.  If  you  only  realize  how  rare  this  combination 
of  qualities  is — how  seldom  the  energy  which  springs 
from  religious  conviction  is  found  united  with  perfect 
fearlessness  in  encouraging  the  spread  of  knowledge, 
you  will  understand  what  we  have  lost  through  Dr. 
Duff's  departure,  and  why  I  place  it  among  th<. 
foremost  events  iu  the  University  year.  The  next 
incident  I  have  to  advert  to,  in  relation  to  the 
University  of  Calcutta,  is  not  a  fact,  but  the  contrary 
of  a  fact.  Most  of  you  have  heard  of  the  munificent 
donations  which  have  been  made  to  the  University 
of  Bombay  by  the  Native  community  of  that 
Presidency.  I  am  sorry  to  have  to  state  that  there 
is  nothing  of  the  kind  to  record  of  Calcutta.  I  do 
not  mean  to  say  anything  harsh  when  I  declare  that 
our  position,  in  regard  to  the  Natives  of  Bengal,  is 
one  of  perpetually  giving  and  never  taking — of 
always  conferring  and  never  receiving.  We  have 
sextupled  our  students,  but  it  is  humiliating  to  have 
to  state  that  the  only  assistance  accruing  to  the 
higher  education  in  Bengal  from  any  quarter,  except 
the  Government,  has  consisted  in  the  right  to  share 


THE   mDLlN   GOVERXME^'T  AXD  PRIVATE  ENDOWMENTS.  249 

in  a  fund  for  the  encouragement  of  legal  studies 
created  by  a  Bombay  gentleman.  Of  course  1 
cannot  pretend  to  be  ignorant  of  the  cause  of 
this.  It  comes  from  the  bad  habit  of  looking  to  the 
Government  as  tho  sole  natural  author  of  every 
public  benefit ;  and,  permit  me  to  say,  that  the 
European  portion  of  society  appear  to  me  a  little 
under  the  influence  of  the  same  error  which  seems  to 
stint  the  liberality  of  the  Natives.  Some  people  appear 
to  think  that  the  University  will  never  have  attained  a 
footing  of  respectability,  until  we  are  lodged  in  the 
building  which  has  been  promised  to  us.  I  shall  be 
glad  when  we  get  that  building,  and  I  hope  we  shall 
get  it;  but  except  for  its  mere  material  convenience,  I 
shall  attach  the  very  smallest  importance  to  it.  It  ib 
not  public  money,  or  the  results  of  public  money, 
that  we  should  care  to  obtain.  Depend  upon  it,  the 
vitality  of  a  University  is  proved  not  by  the  amounts 
which,  by  begging  or  bullying,  it  can  extract  from  the 
guardians  of  the  public  purse;  it  is  proved  by  those 
benefactions  which  are  the  natural  payment  of  society 
for  the  immense  benefits  which  it  receives  through 
the  spread  of  education.  Look  to  our  two  great 
English  University  towns.  They  are  absolutely  con- 
structed of  the  monuments  of  private  liberality ;  even 
the  Kings  and  Queens  who  built  some  of  their  most 
magnificent  structures,  built  them  from  their  private 
resources,  and  not,  as  an  Indian  Ruler  must  always 


250  ENDOWMEIs^TS    OF    ENGLISH    UNIVERSITIES. 

do,  out  of  the  taxes,  paid  to  a  great  extent  as  taxes 
always  must  be,  by  the  poorest  of  the  poor.  Yet  I 
think  that  if  ever  there  vv^as  a  country  in  which  we 
might  expect  the  wealthier  classes  to  have  the  ambi- 
tion of  perpetuating  their  names  by  University  endow- 
ments, it  is  India.  There  seems  to  me  to  be  no  countrv 
in  which  men  look  so  far  forward  or  so  far  backward 
— in  which  men  so  deliberately  sacrifice  their  lives  to 
the  consideration  of  what  their  ancestors  have  done 
before  them,  and  of  what  their  descendants  will  do 
after  them.  I  may  surprise  some  of  you  by  saying 
this  ;  but  it  is  my  fixed  opinion,  that  there  is  no 
surer,  no  easier,  and  no  cheaper  road  to  immortality, 
such  as  can  be  obtained  in  this  world,  than  that 
which  lies  through  liberality  expending  itself  in  the 
foundation  of  educational  endowments.  I  turn  ao;ain 
to  the  older  English  Universities,  which  I  mention 
so  often  because  I  know  them  best.  If  you  could 
transport  yourselves  to  Oxford  or  Cambridge,  you 
would  hear  ringing  in  your  ears  the  names  of 
hundreds  of  men  whose  memories  would  have 
perished  centuries  ago  if  they  had  not  linked  them  to 
the  Universities  by  their  benefactions.  I  will  give 
you  an  example.  After  you  pass  out  of  the  gate  of 
my  own  College  at  Cambridge,  you  have  before  you 
one  of  the  most  famous,  one  of  the  most  beautiful, 
one  of  the  most  useful  of  University  foundations.  It 
is   called  Caius  College,  and  it  is  the  chief  school  of 


CAIUS    COLLEGE.  251 

medicine  in  the  University.  Who  was  Caius,  the 
founder?  I  will  not  say  that  he  was  an  entirely 
obscure  man — that  would  be  unjust  to  his  memory — 
but  he  was  a  man,  a  successful  physician,  who  would 
have  been  thoroughly  well  forgotten,  if  he  had  not  so 
bestowed  a  part  of  his  wealth  that  his  name  is  daily 
in  the  mouth  of  hundreds,  it  may  be  thousands,  of  the 
educated  youth  of  England.  That  is  only  one  instance. 
Oxford  and  Cambridge,  however,  are  full  of  them; 
colleges,  scholarships,  exhibitions,  prizes,  each  of  them 
is  associated  with  some  name,  which,  but  for  the 
association,  would  have  fallen  into  oblivion  long 
since,  but  which,  as  it  is,  is  stamped  upon  the 
memory  of  multitudes  just  at  the  period  of  life  when 
the  impressions  received  arc  practically  ineffaceable. 
It  may  almost  be  said  that  a  founder  of  University 
endowments  obtains  for  himself  a  new  family.  I 
have  been  told  that  there  are  in  India  certain 
companies  of  Hindoo  ascetics — some  of  them  largely 
endowed — where  the  descent  and  the  title  to  the  pro- 
perty are  traced,  not  from  father  to  son,  but  from  dis- 
ciple to  disciple.  The  records  of  an  English  College 
exhibit  just  this  sort  of  genealogical  tree.  The 
Collegiate  society  forms  a  perpetually  renewed 
family,  and  no  family  was  ever  prouder  of  its 
ancestor.  Indeed,  it  sometimes  happens  that  men 
of  no  mean  birth  almost  prefer  this  pedigree  to  their 
own.     I  ^vill  mention  one  of  them — the  late  Viceroy 


252  NATIVES  AND   EUKOPEANS. 

of  India.  Lord  Elgin  was,  as  you  know,  the 
descendant  of  the  most  famous  King  in  the  line 
of  Scottish  Kings,  and  yet  I  doubt  whether  he 
was  prouder  of  this  great  ancestry,  or  prouder 
of  any  of  his  successes  in  government  or  policy, 
than  of  the  honour  which  he  obtained  in  his  youth 
when  he  was  elected  a  Fellow  of  Merton  Colleo-e  at 

o 

Oxford, 

I  have  now  a  very  few  words  more  to  say, 
and  these  shall  be  addressed  to  those  for  whom 
this  Meeting  is  principally  intended — the  Native 
Students  who  have  just  taken  their  degrees.  As  I 
stated  when  I  began,  I  do  not  think  that  the  taste  of 
the  Native  youth  of  Bengal  for  intellectual  knowledge 
requires  to  be  much  stimulated;  there  are  too  many 
motives  at  work  to  encourao;e  it:  still  there  is  one 
motive  which  I  will  dwell  upon  for  a  moment,  because, 
if  it  were  properly  appreciated,  it  would  at  once  be 
the  strongest  and  the  most  legitimate  inducement  to 
exertion.  Probably,  if  we  could  search  into  the 
hearts  of  the  more  refined  portions  of  the  Native 
community,  we  should  find  that  their  highest  aspira- 
tion was  to  be  placed  on  a  footing  of  real  and  genuine 
equality  with  their  European  fellow-citizens.  Some 
persons  have  told  them  that  they  are  equal  already, 
equal  in  fact  as  they  undoubtedly  are  before  the  law 
Most  of  you  have  heard  of  one  remarkable  effort 
which  was  made  to  establish  this  position.     A  gentle- 


PHILOLOGY   AND    ETHNOLOGY.  253 

man,  wlio  was  then  a  Member  of  the  Government  of 
India,  Mr.  Laing,  went  down  to  the  Dalhousie  Insti- 
tute, and,  in  a  Lecture  delivered  there,  endeavoured 
to  popularize  those  wonderful  discoveries  in  philo- 
logical science  which  have  gone  far  to  lift  the  hypo- 
thesis of  the  common  parentage  of  the  most  famous 
branches  of  the  human  family  to  the  level  of  a 
scientific  demonstration.  I  do  not  know  that  any- 
body was  ever  more  to  be  admired  than  Mr.  Laing 
for  that  act  of  courage,  for  I  know  how  obstinate  were 
those  prejudices  which  he  sought  to  overthrow,  and 
to  what  a  height  they  had  risen  at  the  moment  when 
he  spoke.  The  effect  produced  by  his  lecture  on  the 
Aryan  race  must  have  been  prodigious,  for  I  am  sure 
I  scarcely  see  a  single  native  book  or  newspaper 
which  does  not  contain  some  allusion  to  Mr.  Lain^'s 

o 

aro'ument.  Yet  althouo-h  what  Mr.  Laino:  then 
taught  is  truth,  nothing  can  be  more  certain  than 
that  it  is  barren  truth.  Depend  upon  it,  very  little 
is  practically  gained  by  the  Native  when  it  is  proved, 
beyond  contradiction,  that  he  is  of  the  same  race  with 
the  Englishman.  Depend  upon  it,  the  true  equality 
of  mankind  lies,  not  in  the  past,  but  in  the  future. 
It  may  come — probably  will  come — but  it  has  not 
come  already.  There  are  some,  who,  like  our  late 
colleague,  Dr.  DufF,  believe  that  the  time  will 
arrive,  when  all  men  in  India  will  be  equal  under  the 
shadow  of  the  same  religious  faith.     There  are  some 


254  EQUALITY   OF    MEX. 

■ — more  perhaps  in  number — who  look  forward  to  a 
moral  equality,  who  hope  and  expect  that  there  will 
be  a  period  when  everybody  in  India  will  subscribe 
to  the  same  moral  creed,  and  entertain  the  same  ideas 
as  to  honour,  as  to  veracity,  as  to  the  obligation  of 
promises,  as  to  mercy  and  justice,  as  to  that  duty  of 
tenderness  to  the  weak  which  is  incumbent  on  the 
strong.  But  those  epochs  are  still  distant,  one  pro- 
bably much  more  distant  than  the  other.  Meantime 
the  equality  which  results  from  intellectual  cultivation 
is  always  and  at  once  possible.  Be  sure  that  it  is  a 
real  equality.  No  man  ever  yet  genuinely  despised, 
however  he  might  hate,  his  intellectual  equal.  In 
Europe,  the  only  community,  which,  so  far  as  I  see,  is  ab- 
solutely undivided  by  barriers  of  race,  of  nationality,  of 
prejudice,  of  birth  and  wealth,  is  the  community  of 
men  of  letters  and  of  science.  The  citizens  of  that  Re- 
public have  before  now  corresponded  with  each  other 
and  retained  their  friendships,  while  the  deadliest 
wars  were  separating  their  fellow-countrymen.  I 
have  heard  that  they  are  even  now  corresponding  in  the 
midst  of  the  bloody  conflict  which  desolates  America. 
The  same  influences  which  can  overpower  the  fierce 
hatreds  bred  by  civil  war  can  assuredly  beat  down  the 
milder  prejudices  of  race  and  colour,  and  it  is  as 
fountains  of  such  influences  that  I  believe  the  Uni- 
versities will  count  for  something,  if  they  do  count 
for  anything,  in  the  history  of  British  India. 


ADDRESS    TO   UNIVERSITY  OF  CALCUTTA.^ 

It  remains  for  me  to  follow  former  Vice -Chancellors, 
in  impressing  on  the  students  who  have  just  taken 
their  deojrees,  the  value  of  the  trainino;  throuarh  which 
they  have  passed.  But  there  is  this  difficulty. 
Much  that  has  been  said  by  my  predecessors  was,  I 
have  no  doubt,  new  in  their  mouths,  and  even  start- 
ling to  the  Native  part  of  their  audience.  But  the 
intellectual  developement  of  Bengal  has  been  so  rapid, 
that  many  of  those  positions  have  passed  here  into 
the  stage  which  they  occupy  in  Europe,  and  have 
grown  into  mere  commonplace.  Now,  the  danger 
of  dwelling  on  commonplaces  is  this,  that  it  tempts 
men  of  acute  minds — and  there  are  no  acuter  minds 
than  those  of  the  educated  Bengalis — -to  question 
and  deny  them  ;  and  thus  it  helps  to  put  out  of  sight 
the  important  fact,  that  nothing  becomes  common- 
place which  does  not  contain  so  large  a  proportion  of 
truth  as  to  make  it  commend  itself  at  once  to  the 
perceptions  of  the  great  mass  of  mankind.     I  could 

'  Delivered  before  the  Senate  of  the  University  of  Calcutta  in 
March  1865. 


256  TRAINING   OF   LAWYEKR, 

hardly  do  a  greater  evil  in  a  short  time  than  bj* 
tempting  my  Native  audience  to  doubt  the  advantages 
of  education,  simply  because  their  reiteration  has 
become  tedious.  It  is  not,  then,  because  I  doubt  these 
general  advantages  any  more  than  other  Vice- 
Chancellors,  than  Mr.  Ritchie,  or  Sir  James  Colville, 
or  Lord  Canning,  but  because  no  one  here  doubts 
them,  that  I  put  them  aside  to-day.  What  I  wish  to 
do  now  is,  simply  to  say  a  few  words  to  each  class  of 
the  graduates  who  have  just  taken  their  degrees,  as 
to  the  separate  and  special  training  which  they  have 
passed  through. 

Naturally,  the  first  class  to  which  I  should  wish 
to  address  myself  would  be  the  Graduates  in  Law — 
those  who  are  about  to  join  my  own  profession. 
Most  of  you  are  aware  that  the  number  of  those 
gentlemen  who  have  just  taken  their  degrees  in  law, 
considerable  as  it  is,  does  not  distantly  represent 
the  number  of  those  who  are  destined,  in  one  way  or 
another,  to  follow  the  profession  of  law.  Probably  a 
large  majority  of  the  Graduates  in  Arts,  of  those  who 
have  just  taken  their  degrees,  and  even  of  those  who 
are  studying  in  the  Colleges,  will  become  la^Yyers  in 
some  time,  either  as  members  of  the  Judicial  service, 
or  as  pleaders,  or  as  persons  attached  to  the  establish- 
ments of  the  various  law  Courts.  Now,  I  know  that 
there  are  many  among  my  own  countrymen  who 
think  that  these  crowds  of  Natives  flocking  to  the  law 


POPULARITY   OF   LEGAL    STUDIES.  257 

are  a  morbid  and  unhealthy  symptom.  And  I,  of 
course,  admit  that  it  is  not  a  model  society  in  which 
there  is  permanently  a  superfluity  of  lawyers.  But, 
whether  we  like  or  dislike  the  symptom,  there  is  no 
doubt  of  its  being  healthy  and  natund.  There  are 
many  around  me  who  are  familiar  with  the  accounts 
received  of  the  multitudes  who  crowded  the  Bar  in 
the  early  ,times  of  the  Roman  Republic — accounts, 
which  would  not  be  credible  if  the  same  state  of  things 
had  not  shown  itself  in  modern  Europe,  after  the 
revival  of  letters.  I  doubt  not  that  the  phenomenon 
which  now  shows  itself  in  Bengal  at  this  moment,  is 
to  be  explained  in  the  same  way.  Experience  proves 
that  the  first  result  of  intellectual  cultivation  in  any 
community  is  always  to  divert  an  extraordmarily 
large  part  of  its  youth  to  the  Bar.  The  reason  of  it 
is  not  hard  to  find.  The  pursuit  of  the  law  is  one  of 
the  very  few  walks  of  life  which  offer  attractions  both 
to  practical  and  to  speculative  tastes.  It  gratifies  the 
passion  of  all  young  educated  minds  for  generalization, 
but  the  materials  for  generalization — the  materials 
which  they  fit  in  to  general  rules — are  the  business 
and  the  concerns  of  everyday  life.  The  practice  of 
the  law  combines  the  attractions  of  the  closet  and  of 
the  market-place  ;  it  is  money  making  and  study  at 
the  same  time.  I  can,  therefore,  understand  the 
multitude  of  young  educated  Bengalis  who  give 
themselves  to  the  law.     And  the    aptitude   of  the 

S 


268  NATIVE    APTITUDE    FOR    LAW. 

young  Native  for  the  pursuit  of  law  is  now  placed 
beyond  question,  although,  of  course,  there  has  not 
been  quite  time  to  reach  the  highest  level  of  legal  ac* 
complishment.  A  gentleman  who  may  be  supposed 
to  speak  with  more  authority  than  any  one  in  India 
on  this  subject,  Sir  Barnes  Peacock,  the  Chief  Justice 
of  Bengal,  informed  me  once  that  an  average  legal 
argument  by  Native  Vakeels  in  the  Appellate  High 
Court  was  quite  up  to  the  mark  of  an  average  legal 
argument  in  Westminster  Hall ;  and  that  is  very 
high  praise  indeed.  On  the  other  hand,  complaints 
do  reach  me — these  complaints  are  of  course  more 
addressed  to  the  Native  Bar  of  the  country  districts 
than  to  the  Native  Bar  of  the  Presidency  Towns — of 
a  tendency  to  prefer  subtlety  to  breadth,  and  of  an 
over-love  for  technicality.  Now,  I  should  like  to  say 
a  few  words  about  this  fault  of  over-technicality  and 
over-subtlety,  which  1  know,  of  course,  to  be  the  fault 
attributed  to  all  lawyers  by  laymen.  Perhaps  I  shall 
surprise  some  of  you  if  I  say  that,  if  I  were  asked  to 
give  a  definition  of  law  to  persons  quite  ignorant  of  it 
— I  mean,  of  course,  a  rough  and  a  popular,  not  a 
scientific  definition  or  description — I  should  say  that 
law  is  common  sense.  Of  course,  that  is  only  true 
with  very  considerable  reservations  and  abatements. 
If  is  not  absolutely  true  e  ven  in  England,  where  law 
has  been  cultivated  for  centuries  by  the  flower  of  the 
national    intellect,  an    intellect    wedded,    above    all 


LAV!^   AND    COMMON    SENSS.  25« 

things,  to  common  sense.  And  again,  whatever  the 
result  of  the  admirable  Codes  we  are  introducing,  it 
is  far  from  being  true  here.  But  still,  with  all 
reservations  and  all  abatements,  the  proposition  that 
law  is  common  sense  is  much  truer  than  any  one  look- 
ing at  the  subject  from  outside  can  possibly  conceive. 
What  conceals  this  from  laymen  is  the  fact  that 
law,  being  not  simply  a  science  to  be  learned,  but  an 
art  to  be  applied,  has,  like  all  arts,  to  be  thrown  into 
technical  forms.  Technicalities  are  absolutely  in- 
dispensable to  lawyers,  just  as  the  ideas  of  form,  and 
proportion,  and  colour  have  to  be  thrown  into  a 
technical  shape  before  they  can  give  birth  to  painting 
or  sculpture.  A  lawyer  cannot  do  without  technical 
rules,  any  mor^  than  a  sculptor  or  a  painter  ;  but  still, 
it  is  universally  true  that  a  disposition  to  overrate 
technicalities,  or  to  value  them  for  their  o^vn  sake,  is 
the  characteristic  mark  of  the  journeyman,  as  distin- 
guished from  the  artist.  A  very  technical  lawyer 
will  always  be  a  third-rate  lawyer.  The  remedy, 
then,  which  I  would  apply  to  this  alleged  infirmity 
of  the  Native  legal  mind  is  simply  this — always  pre- 
fer the  substance  to  the  accident.  If  you  are  tempted 
to  value  a  particular  legal  conclusion  for  its  subtlety 
or  (what  sometimes  comes  to  the  same  thing)  ita 
oddity  or  perversity,  rather  than  its  reasonableness, 
you  may  always  safely  suspect  yourself.  Technical 
rules  will  sometimes   lead  to   peryerse   results,    for 

s  2 


260  PROGRESS    OF    MEDICINE. 

technicalities  framed  in  one  generation  occasionally 
fail  to  give  the  results  expected  from  them  in  another, 
and,  of  course,  technicalities  reasonable  in  one  quarter 
of  the  world  sometimes  do  not  serve  their  purpose  in 
another.  But  still,  after  all,  the  grand  criterion  of 
legal  soundness  is  common  sense,  and  if  you  are  in- 
clined to  employ  an  argument,  or  to  draw  an  inference, 
or  to  give  an  opinion  which  does  not  satisfy  the  test, 
which  is  out  of  harmony  with  experience  and  with 
the  practical  facts  of  life,  I  do  not  say,  reject  it 
absolutely,  but  strongly  suspect  it,  and  be  sure  that 
the  presumption  is  heavily  against  it. 

I  can  speak  to  the  next  class  of  graduates,  the 
medical  graduates,  with  much  less  confidence.  I 
suppose  all  of  us  feel  that  Medicine  is  a  subject  in 
which  our  interest  is  out  of  all  proportion  to  our 
knowledge.  Yet  there  is  one  complaint,  which  I 
think  that  a  younger  generation  of  medical  men  are 
likely  to  hear  more  frequently  and  more  impatiently 
made  than  did  their  predecessors.  A  friend  of  mine 
once,  in  this  very  room,  though  to  a  very  different 
audience,  said  he  had  no  belief  in  medicine,  that  it 
was  an  art  which  made  no  progress.  Now,  I  know 
that  medical  men,  conscious  as  they  are  of  daily 
additions  to  their  knowledge,  are  apt  to  regard  such 
complaints  as  the  fruit  of  presumptuous  ignorance  ; 
but  it  may  be  worth  while  to  examine  the  particle  of 
truth  which  makes  such  a  view  of  this  art  possible 


PEOGRESS    OF   MEDICINE.  :261 

to  highly  intelligent  men,  looking  at  it  from  outside. 
I  believe  that  the  eminent  members  of  the  medical 
profession  who  are  now  round  about  me,  will  agree 
with  me  that  medicine  is  a  general  term,  embracing 
a  vast  group  of  arts  and  sciences,  all  subordinate  to 
one  master-art,  the  art  of  healing.  All  these  contri- 
butory arts  and  sciences — physiology,  pathology,  toxi- 
cology, chemistry — are  advancing  at  a  vast  rate,  even 
wdth  a  speed  beyond  the  march  of  other  sciences  ; 
because,  to  the  influences  which  stimulate  the  pro- 
gress of  other  sciences  is  added,  in  their  case,  the 
poignant  spur  of  professional  ambition  and  interest  ; 
and  whenever  all  these  arts  and  sciences  are  com- 
pleted, medicine  will  be  most  perfect  and  complete 
of  all  the  arts.  But,  by  the  very  necessities  of  their 
profession,  medical  men  are  compelled  to  act  as  if  an 
art  was  complete  which  is  only  completing  itself. 
We  are  constituted  of  too  frail  a  structure  to  be  able 
to  wait  for  the  long  result  of  time,  and  our  infirmities 
place  medical  men  at  a  disadvantage,  as  compared 
with  other  men  of  science,  by  forcing  them  to  anti- 
cipate a  consummation  which  may  be  near  but  has 
not  yet  been  reached.  The  scepticism,  then,  to  which 
I  have  referred  is  the  result  of  a  misunderstanding, 
and  is  the  necessary  consequence  of  the  position 
of  the  art  ;  it  is  surely  pardonable,  for  to  Europeans, 
at  all  events,  in  India,  the  common  saying,  *  art  is 
long life    is    short,'    has    sometimes     a    terrible 


262  FACULTY    OF   AETS. 

BignSjcaiice.  Perhaps  it  would  be  well  if  the  mis. 
understanding  were  cleared  up,  and  language  were 
used  on  both  sides  which  would  reconcile  the  justifi- 
ably unqualified  language  of  medical  men  as  to 
the  progress  of  their  art,  with  the  not  unjustifiable 
impatience  of  those  who  are  sometimes  tempted  to 
think  that  it  does  not  move  at  all. 

There  remains  one  class,  the  largest  of  all,  the 
graduates  in  Arts.  Since  their  education  is  only- 
introductory  to  pursuits  and  walks  of  life  to  be 
followed  afterwards,  I  can  only  speak  to  them  in 
general  language,  and  therefore  with  but  slight  effect. 
But  there  are  some  peculiarities  in  the  course  which 
they  have  gone  through,  which  make  a  considerable 
impression  on  a  person  like  myself,  who  am  pretty 
well  acquainted  with  the  analogous  course  of  the 
English  Universities.  The  peculiarity  of  the  course 
of  the  University  of  Calcutta  which  most  strikes  me 
is  this — the  nearer  equality  on  which  the  Calcutta 
course,  as  compared  with  that  of  Oxford  or  Cam- 
bridge, places  the  subjects  of  study,  which  are  there 
classed  as  the  new  and  the  old.  Nominally,  our 
course  is  just  the  same  as  that  of  the  English  Uni- 
versity. We  examine  in  classics,  mathematics, 
history,  physical  science,  and  (what  does  not  seem  to 
me  a  correct  term)  moral  science.  But  at  Oxford  and 
Cambridge  two  of  these  subjects,  classics  and  mathe- 
matics, are  much  older  than  the  others,  and  the  new 


KELATIYE    PEIOEITY   OF   STUDIES.  2(53 

branches  of  study  have  a  hard  fight  to  maintain  their 
credit  and  popularity  against  the  prestige  of  the  old. 
It  is  found  still,  I  believe,  very  difficult  to  get  either 
teachers  or  pupils  to  attach  the  same  importance  to 
eminence  in  the  new  studies  which  attaches  to  dis- 
tinction in  classics  or  in  mathematics.  Hence  it  is, 
that  there  is  no  commoner  subject  of  discussion 
among  persons  interested  in  education  than  the 
relative  priority  which  should  be  assigned  to  those 
branches  of  knowledge — which  of  them  ought  to  take 
the  lead  in  point  of  honour,  and  which  is  able  to 
furnish  the  best  training  for  the  mind ;  and  I  have 
seen  recently,  from  some  papers  which  came  from 
England,  in  particular  from  the  Report  of  the  Public 
Schools'  Commissioners,  that  the  controversy  is  still 
going  on.  I  will  not  state  the  arguments  used  in 
England,  which  would  strike  many  of  you  as  some- 
what conventional  and  traditional.  But  still,  the 
question,  which  of  these  branches  of  study  is  really 
destined  to  take  precedence  over  the  rest,  and  to 
bring  the  others  under  its  influence,  is  a  question  of 
interest,  and  in  India  even  of  some  importance.  Of 
course,  but  few  graduates  in  Arts  here,  as  in  England, 
will  follow  in  after-life  the  studies  of  their  period  of 
education,  nor  is  it  desirable  tlmt  many  should  follow 
them.  Some  few,  however,  will  do  it  with  advantage, 
and  it  is  to  this  minority  that  I  address  the  remarks 
I  am  going  to  make. 


264  THE   TRUTH    OP   HISTORY. 

I  will  take,  first,  one  of  the  branches  of  study 
which  enter  into  our  course,  History,  and  I  select  it, 
not  because  it  is  the  one  I  mean,  but  because  there  is 
probably  no  one  in  the  room  who  has  not  some  ele- 
mentary knowledge  of  its  nature  and  objects.  If  the 
question  were  put,  Why  should  history  be  studied? 
the  only  answer,  I  suppose,  which  could  be  given  is, 
Because  it  is  true :  because  it  is  a  portion  of  the  truth 
to  which  it  is  the  object  of  all  study  to  attain.  It  is, 
however,  an  undoubted  fact  that  the  quality  of  the 
truth  expected  from  history  has  always  been  chang- 
ing and  cannot  be  said  to  be  even  now  settled.  Be- 
yond all  question,  it  grew  every  where  out  of  Poetry, 
and  long  had  its  characteristics  even  in  the  Western 
world.  In  the  East,  as  my  Native  auditors  know, 
down  to  comparatively  modern  times  the  two  forms 
of  truth,  the  poetical  and  historical  form,  were  in- 
capable of  being  disentangled  from  one  another. 
In  the  West,  which  alone  has  seen  the  real  birth 
and  growth  of  history,  long  after  it  ceased  to  be 
strictly  poetical,  it  continued  to  be  dramatic  ;  and 
many  of  the  incomparable  merits  of  those  histo- 
rians to  whom  I  see  many  of  the  students  have 
been  introduced  by  their  recent  studies,  the  great 
historians  of  the  ancient  Western  world,  as  for  ex- 
ample their  painting  and  analysis  of  charSuCter,  are 
quite  as  much  due  in  reality  to  their  sense  of  cramatic 
propriety  as  to  their  love  of  pure  truth.     In  modern 


HISTOKY  A:N^D    philosophy.  265 

times,  too,  many  other  considerations  have  had 
priority  over  truth.  During  the  last  century  in 
France,  which  then  had  unquestionably  the  intellectual 
headship  of  Europe,  it  was  a  common  opinion  that 
history  would  be  of  no  value  unless  it  illustrated 
certain  general  propositions  assumed  or  believed  to 
be  proved  a  priori — which  is  the  meaning  of  the  old 
and  in  my  judgment  extremely  false  commonplace 
that  History  is  Philosophy  teaching  by  example.  The 
tendency  in  England,  the  effect  of  that  interest 
which  is  the  keenest  of  all  interests  in  Englishmen, 
their  interest  in  politics,  has  been  to  make  historians 
regard  history  as  pre-eminently  an  instructress  in  the 
art  of  Government,  and  specially  as  charged  with 
illustrating  the  principles  of  that  branch  of  the  art  of 
which  Englishmen  are  masters,  the  art  of  Consti- 
tutional Government.  Some  of  this  last  school  of 
writers  have  been  men  of  the  highest  genius  and  the 
highest  artistic  power,  and  they  have  at  any  rate 
delivered  history  from  one  deadly  sin  against  truth, 
its  dulness.  But  quite  recently — certainly  within  the 
hfetime  of  most  persons  in  this  room — a  manifest 
dissatisfaction  has  shown  itself  with  all  these  schools 
of  history.  It  is  now  affirmed,  and  was  felt  long 
before  it  was  affirmed,  that  the  truth  of  history,  if  it 
exists,  cannot  differ  from  any  other  form  of  truth.  If 
it  be  truth  at  all,  it  must  be  scientific  truth.  There 
can  be  no  essential  difference  between  the  truths  of 


260  HISTORY   AND    SCIENCE. 

the  Astronomer,  of  the  Physiologist,  aid  of  the 
Historian.  The  great  principle  which  underlies  all 
our  knowledge  of  the  physical  world,  that  Nature  is 
ever  consistent  with  herself,  must  also  be  true  of 
human  nature  and  of  human  society  which  is  made 
up  of  human  nature.  It  is  not  indeed  meant  that 
there  are  no  truths  except  of  the  external  world,  but 
that  all  truth,  of  whatever  character,  must  conform  to 
the  same  conditions;  so  that,  if  indeed  history  be  true, 
it  must  teach  that  which  every  other  science  teaches, 
continuous  sequence,  inflexible  order,  and  eternal 
law. 

This  brings  me  to  the  point  to  which  I  was 
desirous  of  leading  you.  Among  all  our  subjects  of 
study,  there  is  no  doubt  as  to  which  is  the  one  to  which 
belongs  the  future.  The  fact  is  that  within  the  last 
fifteen  or  twenty  years,  there  has  arisen  in  the  world  of 
thought  a  new  power  and  a  new  influence,  not 
the  direct  but  the  indirect  influence  of  the  physical 
sciences — of  the  sciences  of  experiment  and  obser- 
vation. The  landmarks  between  the  fields  of  know- 
ledsre  are  beins:  removed  :  the  methods  of  cultivation 

O  CD  ' 

are  more  than  suspected  to  be  the  same  for  all. 
Already  the  most  surprising  results  have  been 
achieved  by  applying  scientific  modes  of  inquiry  to 
provinces  of  study  once  supposed  to  be  furthest  re- 
moved from  science;  and  if  there  is  any  branch  of 
knowledge  which  refuses  to  answer  to   these   new 


HISTORY   AND    SCIENCE.  267 

attempts  to  improve  it,  there  is  a  visible  disposition 
to  doubt  and  question  its  claims  to  recognition.  The 
cransformation  which  some  studies  have  undersfone 
under  the  influence  of  scientific  method  may  be  illus- 
trated by  one  example  of  the  greatest  interest  to  my 
Native  auditors.  I  suppose  that  if  there  was  one  of 
all  the  studies  formerly  followed  with  ardour  which 
had  fallen  into  discredit,  it  was  the  study  of  mere 
words,  the  inquiry  into  the  mere  skeleton  of  ancient 
classical  languages.  It  seemed  to  be  regarded  as 
fitted  only  for  pedants,  and  for  quarrelsome  pedants 
too,  and  was  in  some  danger  of  being  banished  to 
their  closets.  Yet  under  the  influence  of  the  new 
methods,  even  those  dry  bones  have  stirred,  and  to 
the  analysis  of  language  on  strictly  scientific  principles 
we  are  indebted  for  that  marvellous  discovery  which 
more  than  any  other  has  roused  and  excited  the 
educated  Native  mind  in  India,  the  discovery  of  an 
identity  of  origin  between  all  the  great  races  of  the 
world. 

I  should  detain  j^ou  longer  than  could  be  con- 
venient if  I  were  to  try  to  point  out  the  exact  degree 
in  which  scientific  method  has  influenced  other  studies 
which  form  part  of  our  course.  I  need  not  say  that 
nobody  ever  doubted  the  real  character  of  mathe- 
matical study.  Still  in  England  there  is  a  tendency, 
which  requires  correction,  to  exalt  pure  over  mixed 
mathematics,    and    I   have   been   told   that    Native 


263  PURE    AXD    MIXED    MATHEMATICS. 

mathematicians  in  India  strongly  exhibit  a  similar  pre- 
ference. This  displacement  of  the  true  order  of  study 
is  often  defended  at  home  on  the  ground  that  a  pure 
mathematical  training  encourages  accurate  habits  of 
thought  and  reasoning.  Now,  it  is  perfectly  true 
that  mathematical  study,  more  than  any  other  study, 
produces  habits  of  sustained  thought  and  attention, 
without  which  no  great  intellectual  progress  of  any 
kind  is  possible.  But  the  modes  of  reasoning  followed 
in  mathematics  happen  to  be  signally  unlike  those 
followed  in  any  other  walk  of  life  or  province  of 
inquiry,  and  it  would  be  well,  I  think,  if  teachers  in 
India  kept  steadily  before  their  pupils  the  truth  that, 
except  for  the  mighty  aid  they  lend  to  physical 
science,  and  except  for  their  value  in  bracing  the 
faculty  of  attention,  exercises  in  pure  mathematics 
are  as  profitless  an  exercise  as  writing  Latin  or 
Sanscrit  verses,  without  the  same  beneficial  eff*ect  on 
the  taste. 

In  regard  to  the  influence  of  the  new  methods  on 
History,  the  only  observation  I  will  make  is  that 
their  effect  has  been  to  change,  so  to  speak,  its  per- 
spective. Many  portions  of  it  which  had  but  small 
apparent  value  are  exalted  into  high  esteem,  just  as  a 
stone  may  be  of  greater  mterest  to  a  geologist  than  a 
mountain,  a  weed  than  a  flower  to  a  botanist,  a  fibre 
than  a  whole  organism  to  a  physiologist,  because 
they  place  beyond  question  a  natural  law  or  illustrate 


EFFECTS    OF   SCIENTIFIC   METHOD.  269 

it  with  extraordinary  clearness.  One  unquestionable 
eiFect  of  the  tendency  to  regard  history  as  a  science 
of  observation  is  to  add  greatly  to  the  value  of 
ancient,  as  compared  with  modern  history,  and  not 
only  to  that  of  the  wonderfully  precise  history  of 
Greece  and  Rome,  but  to  that  of  the  semi-poetical 
history  of  ancient  India.  Ancient  history  has  for 
scientific  purposes  the  great  advantage  over  modern, 
that  it  is  incomparably  simpler — simpler  because 
younger.  The  actions  of  men,  their  motives  and  the 
movements  of  society  are  all  infinitely  less  complex 
than  in  the  modern  world,  and  better  fitted,  therefore, 
to  serve  as  materials  for  a  first  generalization. 

I  know  very  well  that  if  I  were  addressing  an 
Oxford  or  Cambridge  audience  and  if  I  were  to  speak 
of  the  future  as  belonging  to  the  sciences  of  experi- 
ment and  observation,  I  should  have  many  objections 
to  answer,  some  of  taste,  some  of  philosophical  preju- 
dice, some  perhaps  of  religious  feeling.  But  it  is  one 
advantage  derivable  from  having  to  compare  societies 
so  differently  constituted  as  those  of  England  and 
India,  that  difficulties  which  are  formidable  when 
the  two  societies  are  viewed  apart  disappear  when 
they  are  viewed  together.  Here  in  India  at  all 
events  the  conditions  of  truth  are  plain  enough.  In 
the  fight  which  the  educated  Hindu,  which  the 
Christian  Missionary,  wages  against  error,  such 
success  as  has  been  gained,  such  as  will  Vie  gained. 


270  MORAL   AKD   SCIENTIFIC   ERROR. 

evidently  depends  on  physical  knowledge.  If  the 
mind  of  man  had  been  so  constituted  as  to  be  capable 
of  discovering  only  moral  truths,  I  should  have 
despaired  of  its  making  any  permanent  conquest  of 
falsehood.  Or  a^ain — which  is  much  the  same  thino* 
— if  the  founders  of  false  systems  of  religion  or 
philosophy  had  confined  '  themselves  to  declaring 
moral  errors  only  or  false  propositions  concerning  the 
unknown  and  unseen  world,  I  see  no  reason  for 
doubting  that  in  most  societies,  at  all  events  in 
Oriental  societies,  their  empire  would  have  been 
perpetual.  For,  so  far  from  intellectual  growth 
being  in  itself  certain  to  destroy  error,  it  constantly 
supplies  it  with  new  weapons.  We  may  teach  our 
students  to  cultivate  language,  and  we  only  add 
strength  to  sophistry  ;  we  teach  them  to  cultivate 
their  imagination,  and  it  only  gives  grace  and  colour 
to  delusion;  we  teach  them  to  cultivate  their  reason- 
ing powers,  and  they  find  a  thousand  resources,  in 
allegory,  in  analogy,  and  in  mysticism,  for  evading 
and  discrediting  truth.  Unchecked  by  external 
truth,  the  mind  of  man  has  a  fatal  facility  for 
ensnaring,  and  entrapping,  and  entangling  itself. 
But  happily,  happily  for  the  human  race,  some  frag- 
ment of  physical  speculation  has  been  built  into 
every  false  system.  Here  is  the  weak  point.  Its 
inevitable  destruction  leaves  a  breach  in  the  whole 


VALUE   OF   PHYSICAL   TRUTH.  271 

M>ric,  and  through  that  breach  the  armies  of  truth 
march  in. 

But  I  have  still  another  reason  for  impressing  on 
you  the  supremacy  which  I  conceive  to  be  reserved 
for  the  physical  sciences.  I  think  it  impossible  to 
say  how  much  the  permanence  of  the  instruction  of 
which  this  University  plants  the  germs  depends  on 
the  amount  of  this  knowledge  we  dispense.  Of  all 
knowledge,  the  knowledge  of  physical  laws  is  the 
least  destructible  and  the  most  endurino;.  No  English- 
man  will  admit  that  there  is  any  probable  limit  to  the 
continuance  of  the  supremacy  of  his  race  in  India. 
But  there  is  one  thing  which  will  certainly  outlast 
English  power  in  the  East,  and  that  is  Nature  and 
her  phenomena.  If  that  catastrophe  should  ever 
happen,  which  now  seems  remote  or  impossible — if 
that  pent-up  flood  of  barbarism,  which  the  empire  of 
the  English  race  restrains,  and  only  just  restrains, 
were  to  sweep  down  as  it  has  so  often  done  on 
Bengal,  and  were  to  destroy  that  mere  fringe  of 
civilization  and  education  which  decorates  this  pro- 
vince, I  think  it  probable  that  any  tincture  of  phy- 
sical science  we  may  impart  would  die  out  last. 
Physical  truth,  it  has  been  justly  said,  has  no  advan- 
tage over  moral  truth  but  one  ;  it  has  a  tendency  to 
be  perpetually  re-discovered.  But  this  one  advantage 
is  enormous  j  so  much  so  that  no  one  natural  law 
ever  discovered  has  been  wholly  lost  sight  of,  though 


272  PEIIMANENCE    OF   PHYSICAL   TRUTH. 

the  fruitfulness  of  the  discovery  has  sometimes  been 
suspended  for  ages.  All  Nature  witnesses  to  her  own 
laws  and  is  a  witness  that  never  can  be  silenced. 
The  stars  in  their  courses  fight  for  truth,  and  if 
physical  knowledge  retained  any  foothold  here,  I 
should  say  that  the  statement  would  be  true  which 
has  so  often  been  made  in  another  sense,  and  Indi? 
might  always  be  re-conquered  from  the  sea-board  of 
Bengal. 

Nobody  who  shares  in  that  belief  which  I  im- 
pressed on  a  similar  audience  as  the  noblest  charac- 
teristic of  that  one  of  the  founders  of  our  University 
who  quitted  us  last  3'ear,  a  belief  in  the  harmony  of 
all  truth,  will  suppose  that  I  have  been  exalting  the 
truths  of  physical  nature  at  the  expense  of  moral  or 
any  other  truths.  The  very  fact  which  I  have  been 
impressing  upon  you,  that  the  methods  of  physical 
science  are  proving  to  be  applicable  to  fields  of 
thought  where  they  once  had  no  place,  is  itself  an 
indication  that  all  truth  will,  at  some  time,  be  shown 
to  be  one  and  indivisible.  But  no  doubt  what  I  have 
been  saying  does  carry  with  it  the  implication  that 
truth  of  all  sorts  does  admit  of  intellectual  appreciation 
— that  all  asserted  knowledge  must  at  all  events  to 
some  extent  ring  true,  when  sounded  by  the  intellect 
But  who  in  India  will  deny  this  ?  Nobody,  so  far 
as  I  know,  who  ever  wished  or  attempted  any  good 
for  the  people  of  India — the  politician  who  wished  to 


THE   INTELLECT    IN   INDIA.  27S 

attach  them  to  English  rule,  the  administrator  who 
laboured  to  call  out  the  hidden  wealth  of  their  country, 
the  missionary  who  toiled  for  their  conversion,  the 
philanthropists  who  founded  the  education  which 
culminates  in  this  University  or  who,  like  a  pre- 
decessor of  mine,  sought  to  carry  instruction  into  the 
recesses  of  Native  families — none  of  these  ever  doubted 
that  the  foremost  obstacles  to  success  were  intel- 
lectual errors,  and  that  no  instruments  blunter  than 
those  of  the  intellect  could  thrust  them  aside.  A 
great  English  writer  who  well  represents  part  of  the 
spirit  of  the  English  Universities,  but  that  part  which 
has  most  affinity  for  Oriental  habits  of  thought,  wrote 
the  other  day  of  the  intellect  as  an  all-dissolving,  all- 
corroding  power,  before  which  everything  good  and 
great  and  beautiful  was  gradually  melting  and  sinking 
away.  The  cure  for  this  distortion  of  view  is  in  India, 
where  every  one  of  us  would  rather  describe  the  in- 
tellect as  all-creating  and  all-renewing,  the  only  known 
Ulstrument  of  all  moral  and  of  all  religious  and  of  all 
material  improvement.  But  still  if  intellectual  culti- 
vation is  to  fill  the  measure  of  its  advantages  to  India, 
there  is  no  doubt  it  should  be  constantly  progressive. 
I  myself  attach  very  little  weight  to  the  cavil  at 
Native  education  which  one  sometimes  hears  in  this 
country — that  it  does  nothing  but  fosters  personal 
conceit  and  mental  scepticism.  I  suspect  the  intelli- 
gence, and  still  oftener  the  motives  of  these  cavillerSv 

T 


874  INFINITY   OF   TRUTH. 

But  still  it  is  quite  true  that  conceit  and  scepticism 
are  the  products  of  an  arrested  development  of  know- 
ledge. It  is  far  from  impossible  that  acute  minds  such 
as  those  of  the  educated  Bengalis  may  come  to  the 
point  of  thinking  that  every  thing  is  known,  and  that 
all  that  is  known  is  vanity.  It  is  principally  because 
a  scientific  method  of  enquiry  tends  to  correct  what 
would  be  a  desolating  mistake  that  I  have  dwelt  on 
this  subject  so  long.  That  truth  is  real  and  certain, 
but  that  truth  at  the  same  time  is  infinite,  is  the 
double  conviction  to  which  enquiry  conducted  on 
scientific  principles  leads.  There  can  be  no  manner 
of  question  that  the  progress  of  knowledge  leads  to  the 
very  frame  of  mind  to  which  some  have  thought  it 
fatal  —  not  only  to  certainty,  but  to  reverence. 
Whatever  be  your  point  of  view,  you  will  agree 
with  me  that  to  aim  at  any  consummation  short  of 
this  could  be  but  a  poor  result  of  education  by  this 
University. 


ADDRESS  TO   UNIVERSITY  OF  CALGUTfA.^ 

...  I  AM  not  going  over  the  ground  which  "waa 
traversed  last  year,  and  indeed  it  is  not  necessary  for 
me  to  do  so,  because  the  suggestion,  that  the  sphere 
of  physical  science  in  Native  education  should  be  en- 
larged, appears  to  have  been  generally  assented  to. 
I  know  it  has  been  said — and  it  is  the  only  stricture 
which  I  have  seen,  and  it  is  of  a  somewhat  vague 
character — that  this  proposal  to  found  education  in 
great  part  upon  physical  science  is  too  much  in  har- 
mony with  that  material,  hard,  and  unimaginative 
view  of  life  which  is  beginning  to  be  common  in 
modern  society.  I  admit  that  there  is  some  truth  in 
this  in  its  application  to  Europe  and  England.  But 
in  contrasting  England  and  India,  in  comparing  the 
East  and  the  West,  we  must  sometimes  bring  our- 
selves to  call  evil  good,  and  good  evil.  The  fact  is, 
that  the  educated  Native  mind  requires  hardening. 
That  culture  of  the  imagination,  that  tenderness  for 
it,  which  may  be  necessary  in  the  West,  is  out  of 
place   here  ;    for   this   is   a   society   in    which,    for 

'  Delivered  before  the  Senate  in  March  1866. 
X  3 


276  UNIVERSITY   BUILDINGS. 

centuries  upon  centuries,  the  imagination  has  ran  riot, 
and  much  of  the  intellectual  weakness  and  moral  evil 
which  afflict  it  to  this  moment,  may  be  traced  to 
imagination  having  &o  long  usurped  the  place  of 
reason.  What  the  Native  mind  requires,  is  stricter 
criteria  of  truth  ;  and  I  look  for  the  happiest  moral 
and  intellectual  results  from  an  increased  devotion  to 
those  sciences  by  which  no  tests  of  truth  are  accepted, 
except  the  most  rigid. 

The  only  other  event  which  I  have  to  announce 
— if  I  can  dignify  it  with  the  name  of  an  event — is 
the  advance  through  another  stage  of  the  prepara- 
tions of  our  University  building.  The  plans  for  the 
building  have  received  full  official  sanction,  and 
nothing  now  will  probably  delay  the  construction, 
except  those  impediments  to  rapid  work  which  are 
common  to  all  undertakings  in  India,  whether  they 
be  public  or  private.  I  greatly  regret  the  delay,  and 
have  from  year  to  year  stated  in  this  place  that  I 
regretted  it.  But  1  think  it  just  to  say,  that  it  may 
be  explained  by  a  naturally,  and  indeed,  necessarily, 
imperfect  appreciation  of  the  rank  which  our  claim 
to  a  building  was  entitled  to  hold  among  the  many 
heavy  demands  for  public  works  which  press  upon 
the  Government  of  India.  I  do  not  suppose  that  any- 
body ever  doubted  that  the  existence  of  a  University 
without  a  local  habitation  was  an  anomaly,  or  that 
we  were  entitled  to  a  Hall  for  meetings  like  this. 


UXIVERSITT   EXAillNATIONS.  277 

But,  unless  the  thing  was  seen,  it  was  quite  im- 
possible to  understand  what  are  the  difficulties  under 
which,  for  want  of  that  building,  the  University 
labours  in  discharging  the  very  simplest  functions 
for  which  it  exists.  For  myself,  I  confess  that,  until 
I  was  recently  present  at  the  Examinations,  I  could 
not  have  conceived  the  extraordinary  meanness  of  the 
arrangements  provided  for  holding  them — and  I  know 
they  were  the  only  arrangements  which  could  possibly 
have  been  made.  But  what  was  more  startling 
than  the  mere  insufficiency  of  the  accommodation-^ 
more  striking  than  the  fact  that  we  had  this  year 
to  hold  our  Examinations  in  the  unfinished  shell  of 
the  Post  Office,  and  the  fact  that,  if  next  year  we 
cannot  have  the  unfinished  shell  of  the  High  Court, 
we  shall  be  driven  to  tents  on  the  glacis — ^what  was 
far  more  impressive  than  this,  was  the  amazing 
contrast  betwen  the  accommodation  and  the  extra- 
ordinary importance  which  these  Examinations  have 
acquired.  The  thing  must  be  seen  to  be  believed.  I 
do  not  know  which  was  more  astonishing,  more 
striking,  the  multitude  of  the  students,  who,  if  not 
now,  will  soon  have  to  be  counted  not  by  the 
hundred,  but  by  the  thousand  ;  or  the  keenness  and 
eagerness  which  they  displayed.  For  my  part,  I  do 
not  think  anything  of  the  kmd  has  been  seen  by  any 
European  University  since  the  Middle  Ages ;  and  I 
doubt   whether   there   is   anything   founded   by,  or 


278        SUCCESS  OP  CALCUTTA  UNIVERSITY. 

corinected  with,  the  British  Government  in  India 
which  excites  so  much  practical  interest  in  Native 
households  of  the  better  class,  from  Calcutta  to 
Lahore,  as  the  Examinations  of  this  University. 

These  are  facts,  and  facts  which  are  insuffi- 
ciently appreciated  in  this  country,  and  scarcely 
at  all  at  home.  The  truth  is  that  we,  the  British 
Government  in  India,  the  English  in  India,  have  for  once 
in  a  way  founded  an  institution  full  of  vitality;  and  by 
this  University  and  by  the  other  Universities,  by  the 
Colleges  subordinate  to  them,  and  by  the  Department  of 
Education,  we  are  creating  rapidly  a  multitudinous  class, 
which  in  the  future  will  be  of  the  most  serious  impor- 
tance for  good  or  for  evil.  And  so  far  as  this  University 
is  concerned,  the  success  is  not  the  less  striking,  because 
it  is  not  exactly  the  success  which  was  expected.  It 
is  perfectly  clear,  from  the  language  which  Lord  Can- 
ning once  employed  in  this  place,  in  the  early  days  of 
this  University,  that  the  institution,  which  he  expected 
to  come  into  being,  was  one  which  resembled  the 
English  Universities  more  than  the  University  of 
Calcutta  is  likely  to  do  for  some  time  to  come.  Lor  I 
Canning's  most  emphatic  words  occurred  in  a  passage, 
in  which  he  said  that  he  hoped  the  time  was  near 
when  the  nobility  and  upper  classes  of  India  would 
think  that  their  children  had  not  had  the  dues  of  their 
rank,  unless  they  passed  through  the  course  of  the 
University.     Now  there  is  no  doubt  that  that  view 


UPPER   CLASSES   AND    EDUCATION.  279 

involved  a  mistake.  The  founders  of  the  University 
of  Calcutta  thought  to  create  an  aristocratic  in- 
stitution; and,  in  spite  of  themselves,  they  have 
created  a  popular  institution.  The  fact  is  so;  and 
we  must  accept  it  as  a  fact,  whatever  we  may  think 
of  it.  But  now,  after  the  fact,  now  that  we  are 
wise  by  experience,  it  is  not  difficult  to  see  that 
hardly  anything  else  could  have  occurred.  It  seems 
to  me  utterly  idle  to  expect  that,  in  a  virgin  field, 
— in  a  country  new  to  all  real  knowledge — in  a 
country  in  which  learning,  such  as  it  was,  being  the 
close  monopoly  of  a  hereditary  order,  was  in  exactly 
the  same  position  as  if  it  did  not  exist,  or  existed  at 
the  other  end  of  the  world — it  seems  to  me  idle  to 
expect  that  the  love  of  learning  would  begin  with  the 
wealthy  and  the  powerful.  To  suppose  this,  is  to 
suppose  that  those  who  have  no  acute  spur  to  ex- 
ertion would  voluntarily  encounter  that  which  in  its 
first  beginnings  is  the  most  distasteful  of  all  exercises. 
Before  you  can  difi*use  education,  you  must  create  the 
sense  of  the  vakie  of  it;  and  it  is  only  when  the 
beauty  of  the  results  is  seen,  when  their  positive  and 
material  importance  is  seen,  and  they  get  to  be  mingled 
with  all  the  graces  of  life,  that  those  who  can  do 
without  knowledge  begin  to  covet  and  respect  it. 
There  is  nothing  more  certain,  than  that  the  Englioii 
Universities  in  their  origin  were  extremely  popular 
institutions.      Even  if  we  could  not  infer  the   fact 


2feC  MEDIAEVAL   UNIVERSITIES. 

from  the  crowds  which  flocked  to  them,  it  would  be 
perfectly  plain  from  the  pictures  of  University  life 
preserved  in  the  poetry  of  Chaucer,  that  the  early 
students  of  Oxford  and  Cambridfre  were  children  of 

o 

the  people.  And  the  object  of  those  students  was 
exactly  that  which  is  sometimes  imputed  to  our 
students,  as  if  a  censure  was  intended.  It  was 
simply  to  get  on  in  life;  either  to  enter  the 
Church  which  was  then  the  only  free  field  in 
Europe,  or,  a  little  later,  to  get  into  one  of  the 
clerkly  professions  that  were  rising  up.  But  it 
was  the  example  of  the  educated  classes,  the  visible 
effects  of  education  on  manners  and  on  material 
prosperity  and  its  growing  importance  in  politics 
which  first  attracted  the  nobility.  Their  first  step 
was  not  to  educate  themselves.  The  first  sign  of 
interest  which  they  showed  was  in  the  munificent  en- 
dowments which  they  began  to  pour  in  upon  learned 
institutions ;  and  their  next  step  was  probably  to  engage 
learned  men  for  the  education  of  their  children.  But 
it  was  very  slowly,  and  after  much  temporary  reaction, 
that  that  state  of  things  was  at  last  reached,  to  which 
Lord  Canning  pointed,  and  under  which  it  is  un- 
doubtedly true  that  the  English  nobility  do  put  their 
children  through  the  Universities,  unless  they  have 
chosen  a  profession  inconsistent  with  Academical 
traiiiinof.  But  nothino;  could  be  more  erroneous  than 
tc  suppose,  that  even  now  Oxford  and  Cambridge  are 


OXFORD    AND    CAMBRIDGE,  281 

purely  aristocratic  institutions.  Their  endowments 
are  so  munificent,  and  their  teaching  now-a-days  so 
excellent,  that  membership  in  them  is  profitable,  and 
therefi^re  popular  ;  and  although  noblemen  do  un- 
questionably compete  there  on  equal  terms  with 
others,  the  condition  of  such  competition  is  the  exist- 
ence of  a  class  prompted  by  necessity  or  ambition  to 
keep  the  prestige  of  learning  before  the  eye.  Lord 
Canning  himself,  no  doubt,  belonged  to  a  class 
eminently  characteristic  of  the  English  Universities. 
He  was  a  nobleman  who  worked  hard  at  Oxford, 
when  he  might  have  been  idle.  But  the  brilliant  and 
illustrious  statesman  who  was  Lord  Canning's  father 
belonged  to  a  class  even  more  characteristic  of  them, 
a  class  which,  by  the  lustre  it  receives  from  learning 
and  again  reflects  back  on  it,  stimulates  men  of  Lord 
Canning's  order,  men  some  of  whose  names  are  not 
unknown  to  India, — Lord  Ellenborough,  Lord  Dal- 
housie,  and  Lord  Elgin, — to  follow  its  laborious 
example. 

I  have  admitted  that  we  undoubtedly  are  creat- 
ing a  class  of  serious  importance  to  the  future  of 
India,  and  of  course  the  peculiarities  and  charac- 
teristics of  that  class  are  objects  of  fair  criticism. 
One  of  the  criticisms  on  this  University,  not  uncom- 
monly heard,  that  it  has  failed  to  conciliate  the  Native 
nobility,  seems  to  me  to  be  founded  on  a  false  estimate 
of  past  history,  and   therefore  a  false  calculation  of 


282  EDUCATION  AND   MORALITY. 

probabilities  for  the  future.  There  are  other  objec- 
tions. Some  of  them  I  do  not  purpose  to  notice, 
because  they  are  simply  vulgar.  When,  for  example, 
it  is  said  that  the  Native  graduates  of  this  and  other 
Indian  Universities  are  conceited,  I  wonder  whether 
it  is  considered  how  young  they  are,  compared  with 
English  graduates,  how  wide  is  the  difference  which 
their  education  makes  between  them  and  their  fellow 
countrymen,  and  therefore  whether  some  such  result 
might  not  to  some  extent  be  looked  for  in  any  climate 
or  latitude.  Certainly,  the  imputation  which  is  some- 
times made,  that  education  saps  the  morality  of  the 
Natives,  would  be  serious  if  it  were  true.  But,  not 
to  speak  of  its  being  paradoxical  on  the  face  of  it,  it 
is  against  all  the  evidence  that  I  (or  any  body  else) 
have  been  able  to  collect.  At  all  events,  in  one 
department  of  State,  with  which  I  have  reason  to  be 
acquainted,  it  is  almost  a  maxim  governing  promotion 
that  the  better  educated  is  a  candidate  for  judicial 
employment,  the  less  likely  is  he  to  be  tainted  with 
that  corruption  which  was  once  the  disgrace  of  the 
Indian  Courts. 

But  the  objection  which  is  commonest,  and  which 
most  intimately  concerns  us  here,  is,  that  the  know- 
ledge communicated  by  the  subordinate  Colleges  and 
verified  by  this  University  is  worthless,  shallow,  and 
superficial.  The  course  of  the  University  of  Calcutta 
is  sometimes  said  to  be  in  fault,  and  it  is  alleged,  to 


'  CRAMMING.'  28.1 

use  a  term  at  once  expressive  and  fashionable,  that 
it  encourages  '  cramming.'  Now  there  are  some 
things  in  our  Calcutta  course,  of  which  I  do  not  al- 
together approve.  But  it  was  settled  after  long  dis- 
cussion, shortly  after  I  became  Vice-Chancellor,  and 
it  would  be  absurd  to  be  perpetually  changing  that 
which  of  all  things  ought  to  be  fixed  and  permanent, 
on  account  of  small  defects  which  are,  after  all,  dis- 
putable. I  wish,  however,  to  say  something  of  the 
whole  class  of  objections  implied  in  that  one  word 
*  cramming.'  If  there  is  anything  in  them,  you  know, 
I  suppose,  that  they  have  a  far  wider  application  than 
their  application  to  this  University.  They  are  con- 
stantly urged  against  the  numerous  competitive 
systems  which  are  growing  up  in  England,  and  in 
particular  against  the  system  under  which  the  Civil 
Service  of  India,  probably  the  most  powerful  official 
body  in  the  world,  is  recruited,  and  will  be  recruited. 
The  discredit  which  has  been  successfully  attached 
to  certain  systems  by  this  word  is  a  good  illustration 
of  the  power  of  what  a  famous  writer  called  dyslogistic 
expression,  or,  to  put  it  more  simply,  of  giving  a 
thing  a  bad  name.  And  here  I  must  say,  that  the 
habit  Englishmen  have  of  importing  into  India  these 
commonplace  censorious  opinions  about  systems  and 
institutions,  is  a  great  misfortune  for  the  Natives. 
Even  in  the  mouths  of  the  Englishmen  who  invented 
them,  they  generally  have  very  httle  meaning,  for 


284  '  CRAMMING. 

tliey  are  based  on  a  mere  fragment  of  truth  ;  when 
passed  about  among  the  multitude,  they  have  still 
less ;  and,  at  last,  when  exported  hither,  and  repeated 
by  the  Natives  in  a  foreign  tongue,  they  have  simply 
no  meaning  at  all. 

As  far  as  I  understand  the  word,  it  means  nothing 
more  than  the  rapid  communication  of  knowledge, — 
communication,  that  is  to  say,  at  a  rate  unknown  till 
recently.  Some  people,  I  know^,  would  add  something 
to  the  definition,  and  would  say  that  cramming  is  the 
rapid  communication  of  superficial  knowledge ;  but  the 
two  statements  will  generally  be  found  to  be  identical, 
and  that  they  merely  mean  by  superficial  knowledge, 
knowledge  which  has  been  rapidly  acquired.  The 
true  point,  the  point  which  really  has  to  be  proved  is, 
whether  knowledge  rapidly  acquired  is  more  easily 
forgotten  than  knowledge  which  has  been  slowly 
gained.  The  point  is  one  upon  which,  to  some  extent, 
everybody  can  judge  for  himself  or  herself.  I  do  not 
assert  the  negative,  but  I  am  rather  surprised  at  the 
readiness  with  which  the  affirmative  has  been  usually 
taken  for  granted;  no  doubt,  if  it  be  true,  it  is  a 
curious  psychological  fact,  but  surely  there  are  some 
reasons  for  questioning  the  reality.  It  might  plausibly 
be  argued  that  knowledge  slowly  acquired,  has  been 
acquired  at  the  cost  of  frequent  intervals  of  inattention 
and  forgetfulness.  Now  everybody  knows  that  inat- 
tention and  forgetfulness  tend  to  become  habits  of  the 


COMPETITIVE    EXAMINATIONS.  28H 

mmd,  and  it  might  be  maintained  that  these  habitf 
would  be  likely  to  recur,  in  association  with  a  subject 
of  thought,  even  when  that  subject  has  for  once  been 
successfully  mastered.  On  the  other  hand,  it  might 
be  contended  that  knowledge  rapidly  acquired  has 
been  necessarily  acquired  under  a  certain  strain  and 
tension  of  the  mental  faculties,  and  that  the  effects  of 
this  tension  are  not  likely  to  be  so  readily  lost  and 
dissipated. 

The  simple  truth  is,  that  under  the  strong  stimulus 
applied  by  that  system  of  examinations  by  which  the 
entrance  to  almost  every  English  profession  is  now 
barred,  there  has  sprung  up  an  active  demand  for 
knowledge  of  a  more  varied  description  than  was  once 
coveted,  and  above  all,  for  knowledge  rapidly  imbibed 
and  mastered.  To  meet  this  demand,  a  class  of 
teachers  has  sprung  up  who  certainly  produce 
remarkable  results  with  remarkable  rapidity.  I  hear 
it  said,  that  they  are  men  of  a  lower  order  of  mind 
and  accomnlishment  than  the  teachers    who    follow 

L 

the  old  methods.  It  may  be  so  ;  but  that  only 
renders  the  probability  greater,  that  some  new  power 
has  been  brought  into  play.  I  am  afraid  it  must  be 
allowed,  that  no  art,  of  equal  importance  to  mankind, 
has  been  so  little  investigated  scientifically  as  the  art 
of  teaching.  No  art  is  in  the  hands  of  practitioners 
who  are  so  apt  to  follow  so  blindly  in  tlie  old  piths. 
I  say  this  with  the  full  recollection  that  there  has  b€«n 


286  ART   OF   TEACHING. 

great  improvement  in  England  lately,  and  that  the 
books  of  teaching,  most  in  use,  have  been  purged  of 
many  gross  errors  both  of  statement  and  of  method. 
But  one  line  of  enquiry  there  is  which  has  never  been 
sufficiently  followed,  though  one  would  have  thought 
it  antecedently  the  most  promising  of  all, — the  study 
of  the  human  mind  through  actual  observation,  and  the 
study  of  the  expedients  by  which  its  capacity  for  re- 
ceiving and  retaining  knowledge  may  be  enlarged. 
The  field  of  investigation  has  been  almost  wholly  neg- 
lected, and  therefore  it  may  just  be  that  we  are  on  the 
eve  of  great  discoveries  in  education,  and  that  the  pro- 
cesses of  these  teachers  are  only  a  rough  anticipation 
of  the  future.  The  fact  that  the  methods  of  teaching 
followed  in  England  are  almost  wholly  empirical,  that 
for  the  most  part  they  entirely  neglect  individual  dif- 
ferences of  character  and  temperament,  that  they  cer- 
tainly work  counter  to  the  known  laws  according  to 
which  some  of  the  mental  faculties  operate, — for  ex- 
ample, the  memory — all  these  facts  seem  to  my  mind  to 
point  at  possibilities  and  chances  of  improvement, 
which  a  few  persons,  by  expedients  which,  I  frankly 
allow,  seem  even  to  me  somewhat  ignoble,  have  per- 
haps had  the  good  fortune  to  realize  beforehand. 

You  will  see,  then,  that  the  problem,  whether 
what  is  called  cramming  is  an  unmixed  evil,  is  not 
yet  settled  even  in  England.  But,  in  India,  the 
commonplace    imputations    against   it   seem   to   me 


SUPEKFICIAL   KNOWLEDGE.  2S? 

simply  without  meaning  of  any  kind.  There  is  no 
proof  whatever  that  Indian  teachers  follow  any 
special  methods  of  any  sort.  What  appears  to  be 
meant  is,  that  Natives  of  India  learn  with  singular 
rapidity.  The  fact  may  be  so,  though  for  my  part,  I 
doubt  whether  they  learn  with  greater  rapidity  than 
English  lads  who  once  put  their  hearts  into  their  work 
and  it  may  be  also  true,  as  some  allege  so  positively, 
that  their  precocity  is  compensated  by  a  greater 
bluntness  of  the  faculties  later  in  life.  But  be  this 
true  or  not,  it  has  no  sort  or  kind  of  connection  with 
the  disadvantages  of  cramming. 

If,  indeed,  a  student  be  taught  or  teach  himself 
to  put  on  the  appearance  of  knowledge,  when  he  has 
it  not,  if  he  learns  to  cover  ignorance  by  ambiguous 
phrases,  or  to  obtain  an  undue  preference  by  pan- 
dering to  the  known  crotchets  or  fancies  of  the  exa- 
miner, the  process  and  the  result  are  alike  evil ;  but 
they  have  no  bearing  on  the  point  I  have  been  discuss- 
ing. They  are  simply  a  fraud  ;  but  I  must  say  that 
the  experience  of  those  who  know  best  is,  that  such 
frauds  succeed,  not  through  any  special  skill  in  the 
teacher,  or  any  fault  in  the  course  of  examinatiou 
but  through  the  fault  of  the  examiner.  I  say,  and  I 
say  all  the  more  strongly,  because  I  have  not  the 
smallest  justification  for  imputing  it  to  the  examiners 
of  this  University,  that  no  erroneous  modes  of  teach- 
ing, no  faulty  selection  of  books  or  subjects,  can  do 


288  NATIVE   USE   OF   EDUCATION. 

a  tenth  part  of  the  mischief  and  injustice  entailed  by 
the  indulpjence  of  vanity,  or  crotchettiness,  or  affecta- 
tion, or  indolence,  on  the  part  of  the  examiners. 

If  I  had  any  complaint  to  make  of  the  most 
highly  educated  class  of  Natives, — the  class  I  mean 
which  has  received  the  highest  European  education, 
— a  class  to  which  our  University  has  hardly  as  yet 
contributed  many  members  (because  it  is  too  modern), 
but  to  which  it  will  certainly  make  large  additions 
one  day — I  should  assuredly  not  complain  of  their 
mode  ol  acquiring  knowledge,  or  of  the  quality  of 
that  knowledge  (except  that  it  is  too  purely  literary 
and  not  sufficiently  scientific),  or  of  any  evil  effects 
it  may  have  on  their  character,  or  manners,  or 
habits.  I  should  rather  venture  to  express  disap- 
pointment at  the  use  to  which  they  sometimes  put  it. 
It  seems  to  me  that  not  seldom  they  employ  it  for 
what  I  can  best  describe  as  irrationally  reactionary 
purposes.  It  is  not  to  be  concealed,  and  I  see 
plainly  that  educated  Natives  do  not  conceal  from 
themselves,  that  they  have,  by  the  fact  of  their  edu- 
cation, broken  for  ever  with  much  in  their  history, 
much  in  their  customs,  much  in  their  cr.  ed.  Yet  I 
constantly  read,  and  sometimes  hear,  elaborate 
attempts  on  their  part  to  persuade  themselves  a:  d 
others,  that  there  is  a  sense  in  which  these  rejected 
portions  of  Native  history,  and  usage  and  belief,  are 
perfectly   in  harmony  with  the  modern  knowledge 


ANCIENT   LEAENING   OF   INDIA.  289 

which  the  educated  class  has  acquired,  and  with  the 
modern  civilisation  to  which  it  aspires.  Very  possibly, 
this  may  be  nothing  more  than  a  mere  literary  feat, 
and  a  consequence  of  the  over-hterary  education  they 
receive.  But  whatever  the  cause,  there  can  be  no 
greater  mistake,  and,  under  the  circumstances  of  this 
country,  no  more  destructive  mistake. 

I  would  not  be  understood  to  complain  of  the 
romantic  light  in  which  educated  Hindus  some- 
times read  their  past  history.  It  is  very  difficult  for 
any  people  to  feel  self-respect,  if  they  have  no  pride  in 
their  own  annals.  But  this  feeling,  which  I  quite 
admit  to  be  healthy  when  reasonably  indulged,  becomes 
unwholesome,  and  absurd  too,  when  pushed  to  the 
extravagant  length  to  which  I  sometimes  see  it  driven 
here.  There  are  some  educated  Native  gentlemen 
who  seem  to  have  persuaded  themselves,  that  there 
was  once  a  time  in  India  in  which  learning  was  more 
honoured  and  respected,  and  when  the  career  of  a 
learned  man  was  more  brilliant,  than  in  British  India 
and  under  British  rule.  They  seem  to  believe,  or 
they  try  to  believe,  that  it  was  better  to  be  a  Brahmin 
or  a  scribe  attached  to  the  Court  of  some  half 
mythical  Hindu  king,  than  to  follow  one  of  the  prosaic 
learned  professions  which  the  English  have  created 
Now  thus  much  is  certain.  Although  there  is  much 
in  common  between  the  Present  and  the  Past,  there  is 
never  so  much  in  common  as  to  make  life  tolerable  to 

u 


390  METHOD   OF   MODERN   FICTION. 

the  men  of  the  Present,  if  they  could  step  back  into 
the  Past.  There  is  no  one  in  this  room  to  whom  the 
life  of  a  hundred  years  since  would  not  be  acute 
suffering,  if  it  could  be  lived  over  agam.  It  is  im- 
possible even  to  imagine  the  condition  of  an  educated 
Native,  with  some  of  the  knowledge  and  many  of  the 
susceptibilities  of  the  nineteenth  century  —  indeed, 
perhaps,  with  too  many  of  them. — if  he  could  recross 
the  immense  gulf  which  separates  him  from  the  India  ot 
Hindu  poetry,  if  indeed  it  ever  existed.  The  only 
India,  in  fact,  to  which  he  could  hope  to  return — and 
that  retrogression  is  not  beyond  the  range  of  con- 
ceivable possibilities — is  the  India  of  Mahratta  robbery 
and  Mahomedan  rule. 

I  myself  believe  that  European  influences  are,  in 
great  measure,  the  source  of  these  delusions.  The 
value  attached  in  Europe  to  ancient  Hindu  literature, 
and  deservedly  attached  for  its  poetical  and  philo- 
logical interest,  has  very  naturally  caused  the  Native 
to  look  back  with  pride  and  fondness  on  the  era  at 
which  the  great  Sanscrit  poems  were  composed  and 
great  philosophical  systems  evolved.  But  unques- 
tionably the  tendency  has  its  chief  root  in  this, — that 
the  Natives  of  India  have  caught  from  us  Europeans 
our  modern  trick  of  constructing,  by  means  of  works 
of  fiction,  an  imaginary  Past  out  of  the  Present,  taking 
from  the  Past  its  externals,  its  outward  furniture,  but 
building  in  the  sympathies,  the  susceptibilities,  and 


THE   PAST   OF   INDIA.  291 

even  (for  it  sometimes  comes  to  that)  the  knowledge 
of  the  present  time.  Now  this  is  all  very  well  for  ua 
Europeans.  It  is  true  that,  even  with  us,  it  may 
be  that  too  much  of  the  sloughed  skin,  of  the  Past 
hangs  about  us,  and  impedes  and  disorders  our  move- 
ments. At  the  same  time,  the  activity  of  social  life  in 
Europe  is  so  exuberant,  that  no  serious  or  sustained 
disadvantage  arises  from  our  pleasing  ourselves  with 
pictures  of  past  centuries,  more  or  less  unreal  and  un- 
true. But,  here,  the  effect  of  such  fictions,  and  of 
theories  built  on  such  fictions,  is  unmixedly  dele- 
terious. On  the  educated  Native  of  India,  the  Past 
presses  with  too  awful  and  terrible  a  power  for  it  to 
be  safe  for  him  to  play  or  palter  with  it.  The  clouds 
which  overshadow  his  household,  the  doubts  which 
beset  his  mind,  the  impotence  of  progressive  advance 
which  he  struggles  against,  are  all  part  of  an  in- 
heritance of  nearly  unmixed  evil  which  he  has 
received  from  the  Past.  The  Past  cannot  be  coloured 
by  him  in  this  way,  without  his  misreading  the 
Present  and  endangering  the  Future. 

A  similar  mistake  is  committed  by  educated 
Natives,  when  they  call  in  ingenious  analogies  and 
subtle  explanations  to  justif}'  usages  which  they  do 
not  venture  to  defend  directly,  or  of  which  in  their 
hearts  they  disapprove.  I  am  not  now  referring  to 
some  particularly  bad  examples  of  this,  though 
doubtless  one  does  sometimes  see   educated  Native 

TJ  2 


292  INTERCOURSE   BETWEEN   THE   RACES. 

writers  glorifying  by  fine  names  things  which  are 
simply  abominable.  But  I  allude  to  something  less 
revolting  than  this.  There  are  Native  usages,  not  in 
themselves  open  to  heavy  moral  blame,  which  every 
educated  man  can  see  to  be  strongly  protective  of 
ignorance  and  prejudice.  I  perceive  a  tendency  to  de- 
fend these,  sometimes  on  the  ground  that  occasionally 
and  incidentally  they  serve  some  slight  practical  use, 
sometimes  because  an  imaginative  explanation  of  them 
can  be  given,  sometimes  and  more  often  for  the  reason 
that  something  supei-ficially  like  them  can  be  detected 
in  European  society.  I  admit  that  this  tendency  is 
natural  and  even  inevitable.  The  only  influence 
which  could  quite  correct  it,  would  be  the  influence 
of  European  ideas  conveyed  otherwise  than  through 
books  ;  ill  fact  through  social  intercourse.  But  the 
social  relations  between  the  two  races,  at  least  of 
India,  are  still  in  so  unsatisfactory  a  condition,  that 
there  is  no  such  thing,  or  hardly  such  a  thing,  as 
mixed  Native  and  European  society.  A  late  colleague 
of  mine,  Sir  Charles  Trevelyan,  thought  that  things 
in  this  respect  were  worse  when  he  was  lately  here 
than  when  he  was  first  here.  When  he  was  first 
here,  he  saw  educated  Natives  mixing  on  equal  terms 
with  educated  Europeans.  When  he  came  out  a 
second  time  to  India,  there  was  nothing  of  the  kind. 
But  perhaps  that  happier  state  of  things  was  caused 
by  the  very  smallness  of  educated  Native  society.  As 
educated  society  among  Natives  has  become  larger  it 


ANCIENT   AND    MODERN   INDIA.  205 

has  been  more  independent  of  European  society,  more 
self-sufficing,  and  as  is  always  the  case  under  such 
circumstances,  its  peculiarities  and  characteristics  are 
determined,  in  part,  by  its  least  advanced  sections. 
I  must  impress  this  on  you  that,  in  a  partnership 
of  that  kind,  in  a  partnership  between  the  less  and 
more  advanced,  it  is  not  the  more  advanced  but  the 
less  advanced,  not  the  better  but  the  worse,  that 
gams  by  glossing  over  an  unjustifiable  prejudice,  a 
barbarous  custom,  or  a  false  opinion.  There  is  no 
greater  delusion  than  to  suppose  that  you  weaken  an 
error  by  giving  it  a  colour  of  truth.  On  the  contrary, 
you  give  it  pertinacity  and  vitality,  and  greater  power 
for  evil. 

I  know  that  what  I  have  been  saying  can  hardly 
have  much  significance  or  force  for  the  actual  gradu- 
ates of  this  University.  There  are  few  of  them  who 
can  be  old  enough  to  be  exercising  that  influence, 
literary  or  social,  of  which  I  have  been  speaking,  and 
to  which  their  countrymen  are  so  amenable.  But 
hereafter  they  may  have  occasion  to  recall  my  observa 
tions.  If  ever  it  occurs  to  them  that  there  was  once 
an  India  in  which  their  lot  would  have  been  more 
brilliant  or  more  honourable  than  it  is  now  likely  to  be, 
let  them  depend  upon  it  they  are  mistaken.  To  be 
the  astrologer,  or  the  poet,  or  the  chronicler  of  the 
most  heroic  of  mythical  Indian  princes  (even  if  we 
could   suppose  him  existing)   would  be   intolerable 


294  EDUCATED    NATIVES. 

even  to  a  comparatively  humble  graduate  of  this 
University.  They  may  be  safely  persuaded  that,  in 
spite  of  discouragements  which  do  not  all  come 
from  themselves  or  their  countrymen,  their  real 
affinities  are  with  Europe  and  the  Future,  not  with 
India  and  the  Past.  They  would  do  well  once  for 
all  to  acquiesce  in  it,  and  accept,  with  all  its  con- 
sequences, the  marvellous  destiny  which  has  brought 
one  of  the  youngest  branches  of  the  greatest  family  of 
mankind  from  the  uttermost  ends  of  the  earth  to  re- 
novate and  educate  the  oldest.  There  is  not  yet 
perfect  sympathy  between  the  two,  but  intellectual 
sympathy,  in  part  the  fruit  of  this  University,  will 
come  first,  and  moral  and  social  sympathy  will  surely 
follow  afterwards. 


INDIAN   LEGISLATION.  293 


THE  THEORY  OF  EVIDENCE.^ 

Among  several  reasons  for  the  legislative  activity 
which  is  sometimes  attributed  to  the  British  Govern- 
ment of  India  as  a  distinction,  and  sometimes  as  a 
reproach,  the  most  conclusive  of  all  is  one  which 
very  generally  escapes  notice.  It  is  found  in  the 
powerful  though  indirect  influence  which,  in  the 
absence  of  formal  legislation,  the  law  of  England 
exercises  on  the  law  of  India.  If  Indian  legisla- 
tion is  defended,  as  I  believe  that  much  of  it  may 
be,  on  the  ground  that  it  is  adjusted  to  a  high 
standard  of  equity  and  expediency,  there  is  the 
plausible  answer  that  the  foreigners  who  have  under- 
taken to  make  laws  for  this  vast,  strange,  and  miscel- 
laneous population,  are  bad  judges  of  what  is  expedient 
for  it,  and  possibly  not  very  good  j  udges  of  what  is 
equitable.  This  reply  might  be  met  in  many  ways,  but 
the  rejoinder  which  is  really  conclusive  is,  that  if  the 
Indian  Legislature  were  abolished,  legislation  would 
not  be  arrested.  It  is  not  a  gratuitous,  but  an  inevi- 
table and  never-ceasing  process.  If  (to  employ  Austin's 

^  (Published,  in  the  '  Fortnightly  Review  '  for  January  1873,  as  a 
review  of  Mr.  Fitzjames  Stephen's  Introduction  to  the  Indian 
Evidence  Act.) 


298  JUDICIAL   AND    LEGISLATIVE   POWER. 

phraseology)  the  commands  of  the  Sovereign  are  not 
issued  through  the  special  organ  called  the  Legisla- 
ture, another  set  of  commands  will  be  issued  through 
Courts  of  Justice ;  and,  so  far  as  regards  India,  these 
last  commands  will,  from  the  nature  of  the  case, 
scarcely  ever  even  make  a  pretence  of  being  adjusted 
to  equity  or  expediency.  The  obscurity  with  M^hich 
what  is  really  a  simple  truth  appears  to  be  appre- 
hended is  probably  due  to  our  habit  of  assuming  that 
the  common  distinction  between  executive,  legislative, 
and  judicial  power  is  absolutely  accurate  and  ex- 
haustive. This  famous  classification  of  the  forms  of 
power,  which,  if  it  did  not  originate  with  Montes- 
quieu, is  indebted  to  him  for  its  wide  popularity,  had 
doubtless  the  effect  of  materially  clearing  men's  ideas 
when  they  first  became  familiar  with  it,  and  it  has 
had  great  influence  subsequently  on  several  legisla- 
tive experiments  of  the  first  order  of  importance, 
among  them  on  the  Constitution  of  the  United  States. 
But  the  imperfection  which  lurks  in  it,  and  which  has 
been  exposed  by  the  searching  analysis  of  Austin,  is 
nowadays  a  serious  impediment  to  accurate  juridical 
thought,  and  has  among  other  things  stood  much 
in  the  way  of  serious  inquiry  into  the  exact  nature 
of  that  process  of  judicial  interpretation  or  construc- 
tion which  has  constantly  the  practical  effect  of  legis- 
lation. 

The  earlier  enactments  of  the  Indian  Government 


INDIAN   LEGISLATION.  297 

were  to  a  great  extent  bodies  of  administrative  rules, 
and  formal  legislative  machinery  was  for    the   first 
time  established  by  the  statute  3  and  4  Wm.  IV.,  c. 
85,   known  as  the  Charter  Act  of  1833.     The  laws 
which  have  since  then  been  enacted  by  the  new  organ 
of  State,  for  the  most  part  proceeded  originally  either 
from  the  Law  Members  of  Council,   who  have  been 
able  to  command  very  skilful  assistance  in  India,  or 
else  from  the  Indian  Law  Commission,    a   body  of 
distinguished  English  lawyers  sitting  latterly  in  Lon- 
don, whom  everybody  interested  in  India  and  conver- 
sant with  their  labours  must  speak  of  with  the  deep- 
est respect  and  gratitude.     But  though  provision  was 
made  by  Parliament  for  Indian  legislation  in   1833, 
when  Lord  Macaulay  became  Law  Member  of  Council, 
and  though  the  accumulation  of  valuable  materials  for 
legislation  went  on  for  more  than  twenty  years,  the 
Indian  Legislature  did  not  become  active  until  1859, 
1860,  and  1861,  when,   under   the  influence  of  Sir 
Barnes  Peacock,  it  passed  the   Penal  Code  and  the 
Codes  of  Civil  and  Criminal  Procedure.      There  had 
therefore  been  plenty  of  time  for  the  law  of  India  to 
be  acted  upon  by  the  other  kind  of  legislation,  the 
legislation  of  courts  of  justice;  and  the  results  were 
most  instructive.     The  civil  law  of  the  country,  when 
the  English  first  undertook  its  systematic  adminis 
tration,  had  in  certain  departments  been  extremely 
fuU  of  rules  laid  down  by  some  kind  of  authority, 


298  NATUllE    OF   HINDU    AND    MAHOMETAN  LAW. 

though  the  authorities  constantly  contradicted  one 
another,  and  the  rules  themselves  were  stated  with 
extreme  looseness.  There  was,  for  example,  a  very 
copious  law  of  Succession  after  Death.  The  most 
distinct  effect  of  continued  judicial  construction  on 
provinces  of  law  which  were  in  this  state  has  been,  as 
I  have  attempted  to  show  in  a  recent  work  ('  Village- 
Communities  in  the  East  and  West,'  ante, ■pp.  51  etseq.), 
greatly  to  extend  the  operation  of  semi-sacred  collec- 
tions of  written  rules,  such  as  the  treatises  of  Maho- 
metan doctors,  or  of  the  Brahminical  commentators 
on  Manu,  at  the  expense  of  local  customs  which  had 
been  practised  over  small  territorial  areas.  But  there 
were  many  branches  of  law  in  which  the  political 
officers  of  the  British  Government  could  find  few 
positive  rules  of  any  sort ;  or,  if  any  could  be  disco- 
vered, they  were  the  special  observances  of  limited 
classes  or  castes.  Thus  there  was  no  law  of  Evidence, 
in  the  proper  sense  of  the  words;  hardly  any  law  of 
Contract;  scarcely  any  of  Civd  Wrong.  The  ci\41 
procedure,  so  far  as  it  was  authoritatively  prescribed, 
consisted  in  little  more  than  vague  directions  to  do 
justice.  The  criminal  law  of  the  Hindus,  such  as  it 
was,  had  been  entirely  superseded  by  the  semi-military 
system  of  the  Mahometans.  Into  all  the  departments 
of  law  which  were  thus  scantily  filled  the  English  law 
steadily  made  its  way,  in  quantities  nearly  propor- 
tioned to  the  original  barrenness  of  each  of  them.  The 


INFLUENCE    OF   ENGLISH   JUDICIAL   SYSTEM.  299 

higher  courts,  while  they  openly  borrowed  the  English 
rules  from  the  recocrnised  Enolish  authorities,  con- 
stantly  used  language  which  implied  that  they  believed 
themselves  to  be  takins;  them  from  some  abstract 
body  of  legal  principle  which  lay  behmd  all  law;  and 
the  inferior  judges,  when  they  were  applying  some 
half-remembered  legal  rule  learnt  in  boyhood,  or  cull- 
ing a  proposition  of  law  from  a  half-understood 
English  text-book,  no  doubt  honestly  thought  in 
many  cases  that  they  were  following  the  rule  pre- 
scribed for  them,  to  decide  '  by  equity  and  good  con- 
science '  wherever  no  Native  law  or  usage  was  dis- 
coverable. The  result,  however,  of  the  process  is 
plain  upon  simple  observation.  Whole  provinces 
of  law  became  exclusively,  or  nearly  exclusively^ 
English.  The  law  of  Evidence  became  wholly 
English;  so  did  the  law  of  Contract  substantially;  so 
did  the  law  of  Tort.  The  procedure  of  the  civil  courts 
became  a  close  reproduction  of  the  procedure  of  the 
Court  of  Chancery  in  its  worst  days.  In  the  parts  of 
law  less  universally  affected  by  English  law,  the  in- 
fusion of  English  principles  and  distinctions  was  still 
very  considerable.  I  do  not  think  that  there  is  any 
reason  to  apply  harsh  language  to  this  great  revolu- 
tion ;  for  revolution  it  assuredly  was,  little  as  it  was 
intended  or  even  perceived.  It  was  quite  inevitable 
in  the  absence  of  formal  legislation  ;  for  the  indirect 
effect    of   English   government  was,  from  the  first 


SCO  CHAEACTER    OF   ENGLISH    LAW. 

enormously  to  quicken  the  springs  of  social  activicy, 
principally  by  breaking  up  that  common  life  oi 
families  and  communities  by  which  they  had  been 
retarded.  All  sorts  of  new  questions  were  raised,  and 
moot  points  started  in  civil  affairs ;  and  when  prin- 
ciples were  required  for  the  settlement  of  the  resulting 
controversies,  they  were  necessarily  taken  from 
English  law,  for,  under  the  circumstances,  they  could 
be  found  nowhere  else.  The  points  which  require  to 
be  observed  are — first,  that  the  true  revolutionary 
agent  in  India  has  been  neither  the  Executive  Govern- 
ment nor  the  Legislature,  but  the  Court  of  Justice, 
without  which  the  existence  of  British  rule  in  India 
can  hardly  be  conceived ;  and  secondly,  that  the  only 
possible  corrective  of  the  process  of  change  is  formal 
legislation.  It  is  quite  possible  to  hold  a  respectful 
opinion  of  many  parts  of  English  law,  and  yet  to  affirm 
strongly  that  its  introduction  by  courts  of  justice  into 
India  has  amounted  to  a  grievous  wTong.  The  English 
law  is  a  system  of  colossal  dimensions.  The  community 
which  immediately  obeys  it  has  ceased  to  profess  to 
be  acquainted  with  it,  and  consents  to  be  dependent 
for  knowledge  of  it  on  various  classes  of  experts. 
These  experts  do  not  affect  to  practise  their  art  with- 
out access  to  law  libraries,  consisting  when  complete 
of  many  thousand  volumes.  Now,  there  are  proba- 
bly half-a-dozen  law-libraries  at  most  in  aU  India. 
The  books  they  contain  are  written  in  a  foreign  lan- 
guas^e,  and  the  persons  able  to  consult  these  books  and 


INAPPLICABILITY   OF   ENGLISH    LAW.  801 

to  use  them  properly  are  extremely  few,  and  collected 
at  one  or  two  points  of  Indian  territory  very  re^ 
mote  from  one  another.  And  at  length,  when  the 
laAV  has  been  elicited,  it  is  necessarily  law  brought 
into  existence  by  a  highly  artificial  process  for  a  re- 
mote community,  extremely  unlike  the  natives  of 
India.  The  system  which  Indian  legislation  was 
gradually  superseding  was,  in  fact,  one  under  which 
all  really  important  influence  was  steadily  falling  into 
the  hands  of  a  very  small  minority  of  lawyers  trained 
in  England,  whose  knowledge  must  have  seemed  to 
the  millions  affected  by  it  hardly  less  mysterious 
and  hardly  more  explicable  than  the  inspired  utter- 
ances of  Mahomet  or  Manu.  Not  very  long  ago,  an 
English  judge  stated  from  an  Indian  bench  that  he 
vv'as  reluctant  to  give  judgment  in  an  important  suit, 
because  the  opinion  of  the  Exchequer  Chamber 
reviewing  a  particular  decision  of  the  Common 
Pleas  was  expected  to  arrive  by  the  next  mail; 
and  the  Native  practitioner  who  repeated  to  me  the 
statement  certainly  seemed  to  me  to  be  under  the  im- 
pression that  his  case  was  to  be  decided  by  a  super- 
natural intervention. 

No  branch  of  law  had  become  more  thorouglily 
Enghsh  at  the  time  when  it  was  first  comprehensively 
dealt  with  by  the  Indian  Legislature  than  the  law  of 
Evidence:  and  the  practical  evils  which  hence  arose 
were  even  greater  than  those  which  ordinarily  result 
from  the  adoption  of  an  exotic  system  of  legal  rules, 


802  LAW    OF   EVIDENCE    IN   INDIA. 

collected  with  difficulty  from  isolated  decisions  re- 
ported in  a  foreign  language.  The  theory  of  judicial 
evidence  is  constantly  misstated  or  misconceived  even 
in  this  country,  and  the  English  law  on  the  subject  is 
too  often  described  as  being  that  which  it  is  its  chief 
distinction  not  to  be — that  is,  as  an  Organon,  as  a 
sort  of  contrivance  for  the  discovery  of  truth  which 
English  lawyers  have  patented.  In  India,  several 
special  causes  have  contributed  to  disguise  its  true 
character.  There  is  much  probability  that  our  English 
law  of  Evidence  would  never  have  come  into  existence 
if  we  had  not  continued  much  longer  than  other 
Western  societies  the  separation  of  the  province  of  the 
judge  from  the  province  of  the  jury  ;  and,  in  fact, 
the  English  rules  of  evidence  are  never  very 
scrupulously  attended  to  by  tribunals  which,  like 
the  Court  of  Chancery,  adjudicate  both  on  law  and 
on  fact,  through  the  same  organs  and  the  same 
procedure.  Now,  an  Indian  functionary,  when  he 
acts  as  a  civil  judge,  and  for  the  most  part  when 
he  acts  as  a  criminal  judge,  decides  both  on  law  and 
on  fact.  He  it  is  who  applies  the  rules  of  evidence  to 
himself,  and  not  to  a  body  distinct  from  himself,  and 
he  has  often  to  perform  the  delicate  achievement  of 
preventing  his  decision  from  being  affected  by  sources 
of  information  which  in  reality  have  been  opened  to 
him.  Nor  is  this  all.  The  civil  servant  of  the 
Indian  Government  is,  through  much  of  his  career,  an 
admin istritive   officer,    and,   indeed,   his   duties  are 


LAW   OF   EVIDENCE   IN   INDIA.  808 

sometimes  at  the  same  moment  both  administrative 
and  judicial.  Thus,  until  quite  recently,  the  Magis- 
trate of  the  District  who  exercises  important  criminal 
jurisdiction  was  invariably  the  head  of  the  police; 
and,  in  the  discharge  of  this  last  class  of  functions,  he 
would  lay  himself  open  to  severe  censure  if  he 
neglected  some  sources  of  knowledge  which  the  English 
law  of  Evidence  would  compel  him  to  disregard.  It 
may  thus  happen  that  facts  of  precisely  the  same 
kind  may  have  to  be  taken  into  serious  consideration 
by  an  Indian  civil  servant  during  one  part  of  his 
career  under  penalty  of  rebuke  from  the  Lieutenant- 
Governor,  while  duriQg  another  he  may  have  to  avert 
his  attention  from  them  under  penalty  of  censure 
from  the  High  Court.  It  is,  of  course,  possible  to  ex- 
plain the  apparent  paradox;  but  the  effects  of  their 
peculiar  experience  on  many  distinguished  Indian 
functionaries  may  be  seen  to  be  of  two  kinds.  In 
some  minds  there  is  complete  scepticism  as  to  the 
value  of  the  rules  of  evidence;  and  though  the  man 
who  for  the  time  being  is  a  judge  may  attempt  to 
apply  them,  he  is  intimately  persuaded  that  he  has 
gone  into  bondage  to  a  foolish  technical  system  under 
compulsion  from  the  Court  of  Appeal  above  him 
With  others  the  consequences  are  of  a  different  sort,  but 
practically  much  more  serious.  They  accept  from 
the  lawyers  the  doctrine  that  the  law  of  Evidence  is 
of  the  extremest  importance,  and  unconsciously  allow 


304  THE   INDIAN  EVIDENCE   ACT. 

this  belief  to  influence  them,  not  only  in  their  judicial, 
but  in  their  executive  and  administrative  duties.  It 
is  often  said  in  India  that  the  servile  reliance  upon 
the  English  law  of  Evidence  which  nowadays  cha- 
racterises many  of  the  servants  of  Government,  ie 
producing  a  paralysis  of  administration ;  and  though 
the  assertion  may  be  exaggerated,  it  is  far  from  im- 
possible that  it  may  have  a  basis  of  truth.  I  have 
myself  heard  an  eminent  English  Common  Law  judge 
observe  that,  in  the  exercise  of  the  new  jurisdiction  on 
election  petitions,  he  had  to  maintain  a  constant 
struggle  with  his  own  habits  of  mind  to  preserve  his 
common  sense  when  adjudicating  on  facts  without  a 
jury,  and  to  keep  himself  from  dealing  with  them  ex- 
actly as  he  would  have  done  at  Nisi  Prius. 

Two  things  were  indispensable  for  the  correction 
of  these  evils.  One  was  to  alleviate  the  labour  of 
mastering  the  law  of  Evidence,  whatever  form  it 
might  take,  and,  so  far  as  might  be  possible,  to  place 
the  civil  servant  overwhelmed  by  multifarious  duties, 
the  native  judge,  and  the  native  practitioner  on  a  level 
with  the  English  lawyers  of  the  Presidency  towns, 
who  have  hitherto  virtually  claimed  a  monopoly  of 
knowledge  on  the  subject — a  monopoly  which  the 
great  mass  of  British  settlers  in  India  have  been  eager 
to  concede  to  them  for  political  reasons  not  necessary 
«o  discuss  here.  The  Indian  Evidence  Act  has  been 
framed   and   enacted  with  this  object.     Jt  may  be 


THE   INDIAN   EVIDENCE   ACT.  806 

described  as  the  joint  result  of  the  labours  of  Mr. 
Fitzjames  Stephen,  lately  Law  Member  of  Council, 
and  of  the  Indian  Law  Commissioners;  but  the 
methods  of  statement  and  arrangement  which  are  its 
distinctive  characteristic,  and  of  which  I  shall  have  to 
speak  presently,  are  almost  exclusively  attributable 
to  Mr.  Stephen.  He  has  claimed  for  it  that  it  sets 
forth,  in  explicit  and  compendious  language,  within 
the  limits  of  167  sections,  every  single  proposition  of 
law  having  any  application  to  India  which  is  contained 
in  '  Taylor  on  Evidence,'  one  of  the  longest  law  books 
ever  published.  There  was,  however,  yet  another 
thing  to  be  done  which,  in  my  judgment,  was  of  scarcely 
less  importance  than  the  express  declaration  of  the 
law.  This  was  to  dispel  the  erroneous  and,  under 
the  circumstances  of  the  country,  highly  dangerous 
ideas  which  are  prevalent  in  India  as  to  the  character 
and  functions  of  a  law  of  Evidence.  Mr.  Stephen,  in 
publishing  an  edition  of  the  Evidence  Act,  has  pre- 
fixed to  it  an  Introduction,  in  which  he  propounds  a 
theory  of  judicial  evidence  which  seems  to  me  more 
nearly  correct  than  any  hitherto  given  to  the  world 
by  a  lawyer. 

Some  not  inconsiderable  impediments  to  the  es- 
tablishment of  a  tenable  theory  of  judicial  proof  are 
removed  by  the  Indian  Evidence  Act  itself.  It 
entirely  abandons  the  ambiguous  term  '  hearsay,'  and 
it  confines  the  expression  '  evidence  '   to  the  actual 

X 


fl06  DOUBLE   MEANING   OF   EVIDENCE. 

media  of  proof,  to  '  statements  which  the  Court  per- 
mits or  requires  to  be  made  before  it  by  witnesses  in 
relation  to  matters  of  fact  under  inquiry,'  and  to 
'documents  produced  for  the  inspection  of  the  Court.' 
The  improvement  in  phraseology  thus  effected  is  of 
much  value.  English  lawyers  are  in  the  habit  of 
using:  the  one  name  '  evidence '  for  the  fact  to  be 
proved,  as  well  as  for  the  means  by  which  it  is  to  be 
proved,  and  thus  many  of  the  fundamental  expressions 
of  the  English  law  of  Evidence  have  undoubtedly 
contracted  a  double  meaning.  The  employment  of 
'  primary  evidence  '  sometimes  to  indicate  a  relevant 
fact,  and  sometimes  to  signify  the  original  of  a  docu- 
ment as  opposed  to  a  copy,  may  not  be  of  much 
practical  importance,  but  the  ambiguity  in  the  oppo- 
sition commonly  set  up  between  '  circumstantial 
evidence '  and  '  direct  evidence '  is  really  serious. 
'  Circumstantial  evidence '  is  ordinarily  used  to  signify 
a  fact,  from  which  some  other  fact  is  inferred ;  '  direct 
evidence  '  means  a  man's  testimony  as  to  that  which 
he  has  perceived  by  his  own  senses.  In  the  first 
phrase,  therefore,  '  evidence  '  means  a  relevant  fact  of 
a  particular  kind ;  in  the  second,  it  means  a  particular 
mode  of  proving  a  fact.  Mr.  Stephen  justly  remarks 
that  this  clumsiness  of  expression  is  the  source  of 
the  vulgar  but  most  dangerous  error  which  assumes 
that  circumstantial  and  direct  evidence  admit  of 
being   contrasted  in  respect   of  their   cogency,   and 


CIRCUMSTANTIAL    AND   DIRECT    EVIDE^X'E.  307 

that  they  must  be  adjusted  to  different  conditiona 
before  they  can  be  allowed  to  convince  a  court  of 
justice.  At  the  same  time,  the  practical  incon- 
veniences arisino;  from  these  ambio-uities  must  not  be 
overrated.  The  sagacity  of  English  lawyers  supplies 
the  proper  corrections  in  forensic  practice,  and,  as 
Mr.  Stephen  observes,  it  is  even  convenient  for  popu- 
lar and  general  purposes  to  have  a  word  which 
includes  the  testimony  on  which  a  given  set  of  facts 
is  believed,  the  facts  so  believed,  and  the  arguments 
founded  upon  them.  All  these  meanings  attach  to 
the  word  in  the  title  of  '  Paley's  Evidences  of  Chris- 
tianity,' and,  regard  being  had  to  the  nature  of  the 
work,  the  complexity  of  sense  is  comparatively 
harmless.  Similarly,  in  scientific  inquiries,  the  use 
of  the  same  word  for  a  fact,  and  for  the  testimony  on 
which  it  is  believed,  is  seldom  important.  It  is  only 
in  judicial  investigations  that  the  distinction  must  be 
carefully  maintained  and  kept  in  view,  and  in  them 
for  two  reasons.  First,  if  it  be  not  observed,  the 
whole  theory  of  judicial  proof  is  obscured;  and  next, 
an  obscure  theory  produces  erroneous  legislative  classi- 
fication. 

The  Indian  Evidence  Act  further  brings  into  clear 
light  the  important  truth  that  there  are  only  two 
classes  of  facts  with  which,  in  any  event,  courts  of 
justice  can  be  concerned,  and  of  which  the  existence 
or  non-existence  has  to  be  established  before  them  by 


308  FACTS   IN  ISSUE   AND   RELEVANT  FACTS. 

evidence.  These  classes  of  facts  are  styled  respect* 
ively  by  the  Act, '  facts  in  issue  '  and  '  relevant  facts.' 
'  Facts  in  issue  '  are  the  fact  or  group  of  facts  to 
which,  if  its  existence  be  proved,  the  substantive 
law  of  a  given  community  attaches  a  definite  legal 
coE  sequence,  generally  an  obligation  or  a  right. 
Thus,  in  a  litigation  concerning  lands  in  England, 
the  fact  that  A  is  the  eldest  son  of  B  may  be  in  issue; 
if  it  be  proved,  there  arises  the  inference  under  the 
law  of  England  that  A  is  the  Heir-at-Law  of  B,  and 
has  the  rights  involved  in  that  status.  If,  again,  A 
proffers  a  promise  to  B,  and  B  accepts  it,  and  the 
understanding  between  them  be  reduced  to  writing 
with  certain  formalities,  the  result  of  these  facts — if 
either  undisputed  or  established  by  evidence — is  a 
Contract  under  Seal,  to  which  the  law  annexes  a 
definite  set  of  legal  consequences.  But  there  are 
other  facts,  besides  the  facts  in  issue,  which  may 
have  to  be  proved  before  a  court  of  justice.  These 
are  facts  which  aiFect  the  probability  of  '  facts  in 
issue,'  or,  to  put  it  otherwise,  have  the  capacity  for 
furnishing  an  inference  respecting  them.  Facts  which 
possess  such  a  capacity  are  called  in  the  Evidence 
Act  '  relevant  facts.'  Let  us  suppose  that  A  has  been 
shot,  and  it  is  alleged  that  he  was  shot  by  B  with  a 
particular  intention  or  state  of  mind.  The  first  fact 
being  undisputed,  the  second,  the  homicide  by  B,  and 
the  third,  B's  intention — which  is  a  '  fact '  under  the 


KELEVAXT   FACTS.  809 

definitions  of  the  Evidence  Act — are  facts  in  issue, 
and,  if  they  be  established,  certain  known  legal  conse- 
quences follow  from  them.  But  there  are  certain 
other  facts  which  can  be  proved  by  the  testimony  of 
witnesses.  It  can  be  shown  that  B  absconded  shortly 
after  the  homicide;  that  footprints  near  its  scene  cor- 
respond with  shoes  found  in  B's  possession;  that 
shortly  before  its  occurrence  B  bought  a  pistol ;  that 
blood-stains  could  be  discerned  on  his  clothes  ;  that 
he  made  statements  to  certain  persons  concerning  the 
mode  of  A's  death ;  that  he  made  statements  on  the 
same  subject  to  persons  not  forthcoming,  who  repeated 
them  to  others.  To  this  last  fact  the  law  of  England 
and  the  Indian  Evidence  Act  deny  the  quality  of  re- 
levancy; but  the  other  facts  are  relevant,  and  the 
business  of  the  Judge  of  Fact  is,  first  of  all,  to  assure 
himself  that  they  are  proved,  and  next  from  all,  or 
some  of  them,  or  other  facts  of  the  same  class,  t(> 
infer  the  existence  or  non-existence  of  the  facts  in 
issue. 

The  problem  of  judicial  investigation  is  thus,  in 
great  part,  the  problem  of  relevancy.  It  is  concerned 
with  the  relations  between  facts  considered  as  antece- 
dents and  consequents,  as  cause  and  efiect  ;  and  a 
correct  theory  of  judicial  inquiry  would  be  one  which 
should  set  forth  the  principles  upon  which,  and  the 
methods  by  which,  problems  of  this  description  can 
be  successfully  solved.     Such  problems  would  differ 


SIO  JUDICIAL   AND    SCIENTIFIC   METHODS. 

in  no  essential  respect  from  the  problems  of  bcientific 
inquiry,  and,  like  them,  would  consist  in  a  process  oi 
inferring  unknown  causes  from  known  effects.  Mr. 
Huxley  has  observed  that  the  methods  of  science  are 
not  distino-uished  from  the  methods  which  we  all 
habitually,  though  carelessl}:-,  employ  in  investigating 
the  facts  of  common  life,  and  that  the  faculties  and 
processes  by  which  Adams  and  Leverrier  discovered 
a  new  planet,  and  Cuvier  restored  the  extinct  animals 
of  Montmartre,  are  identical  with  those  by  which  a 
policeman  detects  a  burglar,  or  a  lady  infers  the  up- 
setting of  an  inkstand  from  a  stain  on  her  dress.  Mr. 
Stephen  justly  affirms  that  Mr.  Huxley's  remarks 
admit  of  an  inverse  application,  and  urges  the  im- 
portance of  understanding  that  the  investigation  of 
matters  of  every-day  occurrence,  which  is  the  busi- 
ness  of  the  judge  (and,  I  may  add,  of  the  historian), 
is  conducted,  when  it  is  properly  conducted,  according 
to  the  methods  of  science.  The  most  general  rules 
which  can  be  laid  down  with  respect  to  judicial  in- 
quiry are  those  which  belong  to  the  Logic  of  Facts 
as  set  forth  by  Mr.  John  Stuart  Mill.  Mr.  Stephen,  who 
writes  in  part  for  beginners,  has  abstracted  in  his 
Introduction  Mr.  Mill's  account  of  Induction  and 
Deduction,  and  specially  of  the  inductive  methods  of 
Agreement  and  Difference.  After  illustratmg  the 
application  of  Mr.  Mill's  principles  to  judicial  inqui- 
ries, he   adds  some  observations  of  his  own,  whicb 


THE    SCIENTIFIC   INQUIEER    AXD    THE    JUDGE  Gil 

seem,  to  me  very  important,  on  the  comparative 
advantages  and  disadvantages  of  the  judge,  and  oi 
the  scientific  investigator  of  the  facts  of  nature. 
The  greatest  of  all  the  advantages  which  attend  in- 
quiries into  physical  nature  is  no  doubt  the  possi- 
bility of  indefiniiely  multiplying  relevant  facts,  since 
there  is  no  practical  limit  to  the  number  of  experi- 
ments which  can  be  tried.  But,  on  the  other  hand, 
this  great  resource  is  denied  to  the  judge  and  the 
historian,  who,  in  reference  to  isolated  events,  can 
seldom  or  never  perform  experiment^,  but  are  con- 
fined to  a  fixed  number  of  relevant  facts  which  can- 
not be  increased.  Again,  the  judge  is  placed  under  a 
peculiar  disadvantage  as  compared  both  with  the 
scientific  experimentalist  and  with  the  historian,  by 
the  necessary  urgency  of  his  duties.  He  must  arrive 
at  a  solution  promptly,  and  thus  the  suspension  of 
judgment  which  belongs  to  the  duties  of  the  scien- 
tific inquirer  is  impracticable  to  him,  and  his  stan- 
dard of  certainty  is  proportionately  lower.  Finally,  a 
vast  advantage  over  the  judge  is  enjoyed  by  those  who 
conduct  scientific  inquiries  in  the  much  greater  trust- 
worthiness of  the  evidence  brought  before  them,  so 
far  as  they  have  occasion  to  depend  upon  evidence. 
The  statements  of  fact  reported  by  a  scientific 
observer  are  hardly  ever  influenced  by  his  passions, 
and  are  always  controlled  by  his  knowledge  that  his 
observations  will  be  confronted  with  those  of  others, 


312  THE    EXPERIMENTALIST   AND   THE   JUDGE. 

and  will  be  combined  with  those  of  others  before 
any  inference  is  drawn  from  them.  More  than  all, 
the  evidence  of  a  scientific  witness  is  not  taken  at  all 
unless  his  powers  of  observation  are  known  to  have 
been  tested,  and  the  facts  to  which  he  speaks  are  for 
the  most  part  simple  and  ascertained  through  special 
contrivances  provided  for  the  purpose.  No  one  of 
these  securities  for  accuracy  exists  in  the  case  of  a 
witness  in  a  court  of  justice.  He  is  rarely  a  man  of 
trained  observation.  His  passions  are  often  strongly 
enlisted  in  favour  of  one  view  of  the  question  to  be 
decided.  He  has  the  power  of  shaping  his  evidence 
so  as  to  make  it  suggest  the  conclusion  he  desires. 
Much  of  what  he  states  is  safe  from  contradiction, 
and  the  facts  to  which  he  deposes,  being  portions  of 
human  conduct,  are  constantly  in  the  highest  degree 
intricate. 

Up  to  this  point  the  advantage  is  wholly  on  the 
side  of  the  scientific  inquirer.  But  Mr.  Stephen  has 
some  acute  observations  on  some  special  facilities 
which  materially  assist  those  who  are  engaged  in 
judicial  investigations.  The  rules  by  which  such 
persons  guide  themselves  are  founded  on  propositions 
concerning  human  nature  which  are  only  approxi- 
mately true ;  these  rules  are  stated  with  little  preci- 
sion, and  must  be  constantly  qualified  before  they  are 
applied.  But  then  they  are  of  much  greater  practical 
use  than  would  be  rough  generalisations  concerning 


PEOPOSITIONS  CONCERNING   HUMAN  CONDUCT.         813 

physical  nature,  because  everybody  has  a  stock  of 
personal  experience  by  which  he  can  correct  them. 
This  may  be  illustrated  by  comparing  the  propo- 
sition that  'heavy  bodies  fall  to  the  ground  '  (which  is 
a  rough  generalisation  concerning  physical  nature) 
with  the  proposition  that  '  the  possessor  of  stolen 
goods  is  the  thief  (which  is  a  rough  generalisation 
concerning  human  conduct).  It  is  not  everybody 
who  understands  what  bearing  on  the  first  rule  has 
the  apparent  exception  of  a  balloon  ascending,  but 
everybody  appreciates  the  exception  to  the  second 
rule,  which  arises  when  stolen  coin  is  found  in  the 
till  of  a  shopkeeper  doing  a  large  business.  Lastly, 
the  inquiry  '  whether  an  isolated  fact  exists,  is  a  far 
simpler  problem  than  to  ascertain  and  prove  the  rule 
according  to  which  facts  of  a  given  class  happen. 
The  inquiry  falls  within  a  smaller  compass.  The 
process  is  generally  deductive.  The  deductions  de- 
pend upon  previous  inductions  of  which  the  truth  is 
generally  recognised,  and  which  generally  share  in 
the  advantage  of  appealing  directly  to  the  personal 
experience  and  sympathy  of  the  judge.  The  deduc- 
tions, too,  are,  as  a  rule,  of  various  kinds,  and  so 
cross  and  check  each  other,  and  supply  each  other's 
deficiencies.' 

A  true  theory  of  judicial  inquiry  is  essentially  the 
same  as  a  true  theory  of  scientific  investigation,  but 
it  does  not  at  all  follow  that  a  good  law  of  evidence 


314  NATURE    OF   A    LAW    OF    EVIDENCE. 

would  cover  the  whole  of  the  field  covered  by  a  per- 
fect theory  of  judicial  inference.  As  Mr.  Stephen 
has  said,  all  facts  of  every  sort,  material  and  moral, 
may  for  all  we  know  be  connected  together  as  ante- 
cedents and  consequents,  and  a  supernatural  intelli- 
gence might  perhaps  safely  infer  any  one  fact  from 
any  other.  But  a  Law  of  Evidence  is  necessarily 
limited  by  practical  experience  of  human  nature  and 
conduct,  and  a  good  law  of  the  kind,  by  its  general  or 
particular  descriptions  of  relevant  facts,  ought  not  to 
admit  any  fact  whose  capacity  for  supplying  a  safe 
inference  has  been  shown  by  experience  to  be  dan- 
gerously slight;  nor  ought  it,  on  the  other  hand,  by 
over-strict  or  narrow  definitions,  to  exclude  any  fact 
of  a  class  upon  which  sound  inferences  are  found  to  be 
practically  based  in  the  commerce  of  life.  What  are 
the  merits,  in  this  respect,  of  the  English  Law  of  Evi- 
dence— the  part  of  our  la"w  which  has  been  most  in- 
discriminately praised,  and  at  some  periods  of  its 
history  most  bitterly  attacked — is  much  more  easily 
seen  in  the  Lidian  Evidence  Act  than  in  compendia 
of  older  date.  The  Indian  measure  may  be  described 
as  setting  forth  the  rules  of  our  law  affirmatively 
instead  of  negatively.  The  ordinary  text-books  of 
the  law  of  evidence,  adopting  the  language  of  judicial 
decision,  represent  the  law  as  in  principle  a  system  of 
exclusion.  They  place  in  front  of  it  one  or  two  broad 
general  rules,  shutting  out  testimony    of  a   certair 


RULES   OF  EXCLUSION.  816 

kind,  and  in  particular  the  famous  rule  which,  as 
vulgarly  stated,  affirms  the  inadmissibility  of  '  hear- 
say '  evidence,  or  which,  in  the  phraseology  of  the 
Indian  law,  denies  the  relevancy  of  statements  made 
by  a  witness  not  of  his  own  knowledge,  but  on  the 
information  of  others.  The  bulk  of  the  rules  per- 
mitting testimony  of  certain  kinds  to  be  received  are 
then  stated  as  exceptions  to  some  dominant  rule  of 
exclusion.  It  is  to  be  expected  that  if  a  Digest  (as 
the  term  is  now  understood)  were  framed  of  the  Eng- 
lish law  of  evidence,  it  would  adopt  this  arrange- 
ment. But  the  Indian  Evidence  Act,  which  is  a  good 
example  of  a  Code  as  opposed  to  a  Digest,  keeps  its 
negative  rules,  or  rules  of  exclusion,  in  the  background. 
It  begins  by  declaring  that  '  evidence  may  be  given  in 
any  suit  or  proceeding  of  the  existence  or  non-exist- 
ence of  every  fact  in  issue,  and  of  such  other  facts 
as  are  hereinafter  declared  to  be  relevant,  and  of 
no  others;'  and  then  it  proceeds  to  set  forth  affirma- 
tively the  canons  for  testing  and  determining  the 
relevancy  of  facts  —  tlieir  capacity,  that  is  to  sa}^, 
for  furnishing  an  inference.  The  advantages  of  the 
arrangement  are  mnnifold.  In  the  first  place,  it 
makes  the  law  of  evidence  much  more  easily  under- 
stood by  the  student  or  layman,  for  nothing  in  prac- 
tice helps  so  much  to  keep  this  body  of  rules  an  exclu- 
sive possession  of  experts  as  the  negative  mode  of 
statement  followed  in  the  ordinary  treatises.    Next,  it 


816  RULES   OF  EXCLUSION 

unquestionably  brings  into  much  clearer  liglit  the  true 
merits  of  the  English  law  of  evidence.  That  law  in 
former  times  contained  several  absurd  rules  of  arbi- 
trary exclusion,  or,  as  it  might  be  put,  it  irrationally 
denied  the  relevancy  of  certain  classes  of  facts ;  but 
subject  to  these  drawbacks,  it  always  included  the 
general  rule  that  the  facts  in  issue,  and  all  facts  from 
which  they  might  be  inferred,  might  be  proved ;  and 
the  existence  of  this  great  positive  rule,  which  is  no 
where  expressly  declared  by  the  English  authorities, 
plainly  appears  through  the  arrangement  of  the  Evi- 
dence Act.  The  nature,  too,  of  the  minor  rules,  which 
are  usually  stated  as  exceptions  to  dominant  rules  of 
exclusion,  but  which  here  affirm  the  relevancy  of 
facts  of  a  particular  kind,  is  much  more  distinctly 
shown,  and  the  impression  which  they  make  is  ex- 
tremely favourable  to  them.  All  these  rules  are 
founded  on  propositions  concerning  human  nature  and 
conduct  which  are  approximately  or  roughly  true. 
Such  propositions  are  established  inductively  in  order 
that  they  may  be  employed  deductively  injudicial 
inquiries.  When  we  carefully  examine  such  of  them 
as  are  at  the  base  of  the  English  rules,  and  of  the 
limitations  and  exceptions  to  which  these  rules  are 
subject,  we  find  the  strongest  reason  for  admiring  the 
sagacity  of  the  English  lawyers  who  matured  and 
framed  them.  It  is  quite  true  that,  bat  for  the  in- 
fluence  of  Bentham,  they  would  still  be  intermixed  witb 


ENGLISH   LAW   OF   EVIDENCE.  317 

and  qualified  by  others  of  much  more  than  doul  tful 
wisdom  ;  but  when  all  allowance  has  been  made  for 
the  statutory  reforms  of  the  law  of  evidence  ultimately 
attributable  to  Bentham,  there  remains  quite  enough 
to  give  an  exalted  idea  of  the  knowledge  of  human 
nature,  and  specially  of  English  human  nature,  which 
has  characterized  so  many  generations  of  judicial 
legislators.  Lastly,  I  think  that  the  method  of  the 
Evidence  Act  greatly  facilitates  the  comparison  of  the 
English  law  of  evidence  with  other  bodies  of  rules 
which  are  in  ]>ari  materid^  and  thus  enables  us  to 
see  what  the  English  law  is  not.  It  is  seen  to  be 
very  different  from  those  barren  legal  systems 
which  are  almost  entirely  occupied  with  questions 
of  what  English  lawyers  call  primary  and  secondary 
evidence.  It  is  very  superior  to  others  which  are 
full  of  arbitrary  presumptions,  based  upon  premature, 
imperfect,  or  erroneous  generalisations  about  facts  and 
conduct.  Finally,  it  has  a  special  excellence  in  laying 
down  no  rules  at  all  on  certain  branches  of  judicial 
inquiry.  It  does  not  affect  to  provide  the  Judge  of 
Fact  with  rules  to  guide  him  in  drawing  inferences 
from  the  assertion  of  a  witness  to  the  existence  of  the 
facts  asserted  by  him.  Mr.  Stephen,  in  his  Introduc- 
tion, strongly  insists  on  the  difficulty  of  this  process, 
and  vehemently  contends  against  the  vulgar  belief 
that  it  is  a  simpler  thing  to  infer  the  reality  of  a  fact 
from  an  assertion   of  its  reality,  than  to  infer  one 


818  CROSS-EXAMINATION. 

fact  from  another  which  has  been  proved  beyond 
dispute.  It  is  in  the  passage  from  the  statements 
of  the  witnesses  to  the  inference  that  those  state- 
ments are  true,  that  judicial  inquiries  generally 
break  down.  The  English  procedure  of  examination 
and  cross-examination  is  doubtless  entitled  to  the 
highest  praise;  but,  on  the  whole,  it  is  the  rarest  and 
highest  personal  accomplishment  of  a  judge  to  make 
allowance  for  the  ignorance  or  timidity  of  witnesses, 
and  to  see  through  the  confident  and  plausible  liar. 
Nor  can  any  general  rules  be  laid  down  for  the  acqui- 
sition of  this  power,  which  has  methods  of  operation 
peculiar  to  itself,  and  almost  undefinable.  I  have  heard 
barristers  in  India  assert — and  Mr.  Stephen  tells  the 
same  story  of  a  barrister  in  Ceylon — that  they  knew 
Native  witnesses  to  be  perjuring  themselves  whenever 
their  toes  begin  to  twitch,  and,  country  for  country, 
the  tests  which  English  judges  and  counsel  have 
taught  themselves  to  apply  with  practical  success  are 
hardly  less  singular.  But  the  caution  of  the  English 
law  in  avoiding  express  rules  concerning  this  par- 
ticular process  of  inference  has  not  always  been  dis- 
played by  the  legal  systems  of  other  countries,  or 
always  appreciated  by  speculative  juridical  critics  in 
our  own.  Some  elaborate  attempts  to  connect  the  ac- 
cumulation of  testimony  with  the  theory  of  proba 
bilities  have  proceeded  from  the  very  mistake  which 
the  English  law  has  escaped;  and  the  error  is  at  the 


HISTORY    OF   ENGLISH   LAW   OF   EVIDENCE.  319 

root  of  all  rules  for  definitely  graduating  the  approach 
to  a  valid  conclusion  according  to  the  number  of 
witnesses  who  have  deposed  to  the  existence  of  a  par- 
ticular fact  or  group  of  facts. 

At  the  same  time,  it  must  always  be  recollected  that 
the  affirmative  or  positive  method  of  arrangement 
followed  in  the  Indian  Evidence  Act  does  not  repre- 
sent the  historical  growth  of  the  EngKsh  law  of 
Evidence.  So  far  as  it  consisted  of  express  rules,  it 
was  in  its  origin  a  pure  system  of  exclusion,  and  the 
great  bulk  of  its  present  rules  were  gradually  deve- 
loped as  exceptions  to  rules  of  the  widest  application, 
which  prevented  large  classes  of  testimony  from  being 
submitted  to  the  jury.  The  chief  of  these  were 
founded  on  general  propositions  of  which  the  approxi- 
mation to  truth  was  but  remote.  Thus  the  assump- 
tions were  made  that  the  statements  of  litigants  as  to 
the  matter  in  dispute  were  not  to  be  believed  ;  that 
witnesses  interested  in  the  subject-matter  of  the  suit 
were  not  credible  ;  and  that  no  trustworthy  inference 
can  be  dra^vn  from  assertions  which  a  man  makes 
merely  on  the  information  of  other  men.  The 
vigorous  attacks  of  Bentham  on  the  technical  rules 
which  had  the  first  two  propositions  for  their  founda- 
tion have  caused  them  to  be  removed  from  our  law  ; 
but  the  rule  based  on  the  third — the  rule  commonly 
described  as  the  rule  against  the  admissibility  of 
hearsay  evidence — still  holds  its  ground.     Much  the 


820  EXCEPTIONS   TO   RULES   OF   EXCLUSION. 

largest  part  of  the  law  of  evidence  has  grown  up,  sg 
to  speak,  under  the  shadow  of  this  great  rule  of  ex- 
clusion, and  consists  of  exceptions  to  it  matured  and 
stated  with  a  caution  which  is  the  true  secret  of  the 
value  which  this  branch  of  law  undoubtedly  possesses. 
A  complete  account  of  it  cannot  in  fact  be  given, 
unless  the  mode  of  its  development  be  kept  in  view. 
We  could  not  otherwise,  for  example,  explain  the 
disproportion  between  its  component  parts.  We  find 
in  the  Indian  Evidence  Act  a  few  permissive  rales 
of  the  widest  application,  and  by  their  side  a  multi- 
tude of  minor  rules,  of  which  some  relate  to  matters 
which  are  almost  trivial.  A  rule  declaring  the  re- 
levancy of  commercial  accounts  kept  m  a  particular 
way,  is  grouped  with  such  a  rule  as  affirms  the  rele- 
vancy of  '  facts  which  are  the  occasion,  cause  or 
effect,  immediate  or  otherwise,  of  relevant  facts  or 
facts  in  issue,  or  which  constitute  the  state  of  things 
under  which  they  happened,  or  which  afforded  an 
opportunity  for  their  occurrence  or  transaction.'  It 
would  be  impossible  to  understand  the  number  of 
carefully  limited,  but  very  minute,  permissive  rules, 
without  reference  to  their  origin  in  a  rule  of  ex- 
clusion ;  and,  indeed,  it  is  morally  certain  that  if  the 
English  lawyers,  instead  of  slowly  framing  exceptions 
to  rules  shutting  out  testimony,  had  set  themselves 
to  lay  down  a  series  of  affirmative  propositions  as  to 
the  classes   of  facts  from  which  inferences   can  be 


JUDGE   AND   JURY.  331 

safely  drawn,  they  would  have  created  a  body  of  rules 
very  different  from  the  existing  law,  and,  in  all  pro- 
bability, infinitely  less  valuable.  Another  important 
reason,  too,  for  remembering  that  our  law  of  evidence 
is  historically  a  system  of  exclusion,  is  that  we  cannot 
in  any  other  way  account  for  its  occasional  miscar- 
riages. The  conditions  under  which  it  was  originally 
developed  must  still  be  referred  to,  in  explanation  of 
the  difficulty  of  applying  it  in  certain  cases,  or  of  the 
ill  success  which  attends  the  attempt  to  apply  it. 
The  mechanism  of  judicial  administration  which  once 
extended  over  a  great  part  of  Europe,  and  in  which 
the  functions  of  the  judge  were  distributed  between 
persons  or  bodies  representing  distinct  sources  of 
authority — the  King  and  the  country,  or  the  Lord 
and  his  tenants — in  England  gradually  assumed  the 
shape  under  which  we  are  all  familiar  with  it  in 
criminal  trials  and  at  Nisi  Prius.  A  body  of  men, 
whose  award  on  questions  of  fact  is  in  the  last  resort 
conclusive,  are  instructed  and  guided  to  a  decision  by 
a  dignitary,  sitting  in  their  presence,  who  is  assumed 
to  have  an  eminent  acquaintance  with  the  principles 
of  human  conduct,  whether  embodied  or  not  in  tech- 
nical rules,  and  who  is  sole  judge  of  points  of  law,  and 
of  the  admissibility  of  evidence.  The  system  of  tech- 
nical rules  which  this  procedure  carries  with  it  fails 
then,  in  the  first  place,  whenever  the  arbiter  of  facts 
—'the  person  who  has  to  draw  inferences  from  or 

Y 


822  SPECIAL   CANONS    OP    EVIDENCE. 

about  them — has  special  qualifications  for  deciding  oi: 
them,  supplied  to  him  by  experience,  study,  or  the 
peculiarities  of  his  own  character,  which  are  of  more 
value  to  him  than  could  be  any  general  direction 
from  book  or  person.  For  this  reason,  a  policeman 
guiding  himself  by  the  strict  rules  of  evidence  would 
be  chargeable  with  incapacity,  and  a  general  would  be 
guilty  of  a  military  crime.  Again,  the  blending  of 
the  duties  of  the  judge  of  law  and  of  the  judge  of 
fact  deprives  the  system  of  much,  though  not  neces- 
sarily of  all,  of  its  utility.  An  Equity  judge,  an 
Admiralty  judge,  a  Common  Law  judge  trying  an 
election  petition,  an  historian,  may  employ  the 
English  rules  of  evidence,  particularly  when  stated 
affirmatively,  to  steady  and  sober  his  judgment,  but 
he  cannot  give  general  directions  to  his  own  mind 
without  running  much  risk  of  entangling  or  enfeebling 
it,  and,  under  the  existing  conditions  of  thought,  he 
cannot  really  prevent  from  influencing  his  decision 
any  evidence  which  has  been  actually  submitted  to 
him,  provided  that  he  believes  it.  Englishmen  are 
extremely  prone  to  do  injustice  to  foreign  systems  of 
judicial  administration,  from  forgetting  the  inherent 
difficulty  of  applying  the  English  law  of  evidence, 
when  the  same  authority  decides  both  on  law  and  on 
fact,  as  is  mostly  the  case  in  other  countries.  The 
evidence  permitted  to  be  pla-^ed  before  a  French  jury 
has  often  furnished  English  lawyers  with  matter  for 
surprise   or   merriment.     But  the  jury   is   a    mere 


FOREIGN    SYSTEMS    OF    EVIDENCE.  33! 

modern  excrescence  on  French  criminal  procedv.re 
It  still  works  clumsily  and  very  much  at  haphazard. 
French  judges  and  lawyers  are  entitled  to  have  their 
aptitudes  tested  by  their  method  of  dealing  with  civil 
cases,  in  which  the  same  Court  which  settles  points  of 
law  decides  questions  of  fact  ;  and  there  the  special 
skill  and  acquired  sagacity  which  are  applied  to  facts, 
though  very  slightly  controlled  by  a  law  of  evidence, 
lead,  I  believe,  to  a  sound  decision  just  as  often  as 
the  equivalent  accomplishments  of  our  own  judges. 

The  value  to  India  itself,  not  of  the  Evidence  Act, 
but  of  the  system  of  rules  included  in  it,  is  a  rather 
complex  question.  I  have  no  doubt  whatever  that 
the  Indian  Law  Commissioners  and  Mr,  Stephen  were 
wise  in  legislatively  declaring  the  law  of  evidence,  as 
they  found  it  nominally  prevailing  throughout  India 
— that  is,  as  a  body  of  rules  not  distinguishable  from 
those  of  English  law.  Their  measure  has,  in  fact,  for 
the  first  time,  put  this  law  into  a  state  which  admits 
of  its  operation  being  accurately  observed  and  tested. 
But  it  may  be  suspected  that,  after  more  experience 
of  its  working  has  been  gained  by  the  servants  of  the 
Indian  Government,  who  will  henceforward  be  uni- 
versally familiar  with  it,  a  certain  number  of  its  rules 
will  be  found,  so  far  as  India  is  concerned,  to  require 
modification.  The  reasons  for  this  opinion  may  be 
thus  stated.  The  rules  of  evidence  are  founded  on 
propositions  concerning  human   nature  £.nd  conduct 

T  2 


S24  ENGLISH  RULES   IN   INDIA. 

which  are  approximately  true.  When,  however,  we 
are  transferring  a  system  from  England  to  a  country 
so  far  removed  from  it,  morally  and  mentally,  as 
India,  we  cannot  be  quite  sure  that  all  the  proposi- 
tions which  are  roughly  true  of  one  people  and  one 
state  of  society  are  in  the  same  degree  true  of  another 
people  and  another  social  state.  Still  less  can  we  be 
sure  that  the  relative  truth  of  rules  founded  on  pro- 
positions of  this  sort  is  the  same  in  the  two  countries. 
Mr.  Stephen,  as  I  have  said,  strongly  contends  that 
one  of  the  most  difficult  processes  which  the  judicial 
mind  has  to  go  through  is  the  inference  from  the  fact 
of  a  witness's  assertion  to  the  existence  of  the  fact 
asserted  by  him;  but  still,  though  the  principle  is 
from  the  nature  of  the  case  nowhere  expressly  laid 
down,  it  would  be  unreasonable  to  doubt  that  wit- 
nesses in  England  verj^  generally  speak  the  truth,  and 
the  assumption  that  they  do  speak  it  is  perpetually 
acted  upon.  On  the  other  hand,  the  statements  of  a 
person  who  is  not  called  as  a  witness  are,  subject  to 
exceptions,  inexorably  excluded  by  English  law. 
It  is,  therefore,  considered  in  this  country,  and  it  is 
probably  true,  that  a  fact  deposed  to  by  a  witness  in 
court  is  more  likel}''  to  exist  than  a  fact  reported 
at  second-hand.  But  it  is  a  great  deal  more  than 
doubtful  whether  this  assertion  can  be  confidently 
made  of  India.  The  inference  from  the  statement  of 
a  witness  to  the  truth  of  the  statement,  which  is  not 


EKGLISH   KULES   IN  INDIA.  326 

always  secure  here,  is  there  in  the  highest  degree  un- 
safe. The  timidity  of  the  people ;  their  training 
during  childhood  in  households  in  which  veracity  is 
said  to  be  scarcely  recognised  as  a  virtue ;  the  strange 
casuistry  of  their  religious  literature,  which  excuses 
false  speaking  and  swearing  in  the  interests  of  the 
higher  castes;  possibly  (as  some  say)  their  dramatic 
instinct,  which  leads  them  to  confound  truth  with 
verisimilitude ;  more  than  all  (as  is  generally  believed), 
the  disinclination  of  the  English  to  sanction  the 
grotesque  and  superstitious  oaths  which  the  natives 
employ  among  themselves — all  these  causes  contribute 
to  produce  the  very  general  worthlessness  of  native 
testimony.  Fortunately  the  evil  is  diminishing.  It 
is  no  mere  comfortable  commonplace,  but  a  fact 
established  by  abundant  observation,  that  the  practice 
of  truth-speaking  diffuses  itself  with  the  spread  of 
education,  and  it  is  beginning  to  be  true,  with  the  ex- 
ceptions to  be  found  in  all  countries,  that  an  educated 
]Sative  of  India  either  will  not  lie  or  will  feel 
acutely  the  shame  of  being  detected  in  lying.  But, 
nevertheless,  strong  distrust  is  still  felt  by  Indian 
Courts  of  much  or  most  of  the  direct  testimony  pi  e- 
sented  to  them,  and  hence  they  are  apt  to  attach  very 
great  weight  to  relevant  facts  established  beyond 
dispute,  which  in  this  country  would  be  regarded  as 
of  minor  importance  and  significance.  There  is, 
therefore,  considerable  danger  lest  too  narrow  canons 


826  INDIAN   TESTIMONY. 

of  relevancy  should,  in  virtue  of  principles  admitted 
to  be  at  best  only  roughly  true,  occasionally  forbid  an 
Indian  Court  to  take  into  account  facts  which  furnish 
inferences  a  great  deal  safer  than  all  the  evidence 
which  the  law  unhesitatingly  lets  in.  I  myself  have 
known  a  heavy  mercantile  suit  to  be  tried  by  a  judge 
who  was  intimately  persuaded  that  the  witnesses  on 
each  side  were  telling  a  concerted  story  in  which  there 
was  a  large  element  of  falsehood;  but  what  was  its 
amount,  the  facts  before  the  Court  did  not  enable  him 
to  decide.  It  was  known,  however,  that  a  person  of 
good  repute  had  made  a  statement  concerning  the 
matter  in  dispute  under  perfectly  unsuspicious  circum- 
stances, which  would  have  decided  the  case;  but  he 
was  shown  to  be  ahve,  and  he  was  not  called  as 
a  witness.  The  theory  of  the  law  was  that,  as  he  was 
in  a  foreign  country,  a  commission  should  issue  for 
his  examination.  The  fact  was  that  he  had  settled  as 
a  religious  ascetic  in  Bokhara,  and  in  Bokhara  as  it 
was  before  the  Russian  advance  in  Central  Asia !  I 
imagine,  therefore,  that  the  more  general  application 
of  the  rules  of  evidence  which  will  follow  the  enact- 
ment of  the  Evidence  Act  is  extremely  likely  to  lead 
to  stni  further  relaxations  of  the  so-called  rule  against 
'hearsay,'  as  required  under  the  special  circumstances 
of  India.  Nor  do  I  suppose  that  Mr.  Stephen  is  of  a 
very  different  opinion.  He  introduced  into  the 
Evidence  Act  a  peculiar  provision  (sect.  165),  under 


HEARSAY    EVIDENCE   IX   INDIA.  S27 

which  an  Indian  judge  is  empowered,  for  the  purpose 
of  obtaining  proof  of  '  relevant '  facts,  to  ask  questions 
even  concerning  '  irrelevant '  facts,  or  in  other  words, 
facts  not  falling  under  the  definitions  of  relevancy ; 
nor  can  any  objection  be  taken  to  these  questions.  I 
have  heard  this  power  described  by  a  person  incredu- 
lous of  the  value  of  the  English  system  of  evidence 
as  nothing  less  than  its  reductlo  ad  ahsurdum.  And, 
indeed,  if  the  liberty  of  receiving  testimony  technically 
irrelevant  were  to  be  very  largely  and  universally  em- 
ployed in  India,  there  might  be  some  justice  in  the 
charge.  But  I  take  the  provision  as  intended,  so  to 
speak,  to  ease  off  the  law  of  evidence,  which  will  now 
be  at  everybody's  command,  until  the  practical  re- 
sults of  its  general  application  in  India  have  been 
sufficiently  observed.  So  understood,  the  expedient 
seems  to  be  prudent  and  ingenious.  Meanwhile,  the 
rules  of  evidence  will  be  bindino;  on  contendin": 
litigants  and  on  their  advocates,  while  they  will 
doubtless  be  generally  obeyed  by  the  judge,  and  will 
in  any  event  exercise  a  steadying  and  sobering  in- 
fluence on  his  mind. 

It  does  not  fall  within  the  scope  of  this  paper  to 
inquire  whether  the  English  Eaw  of  Evidence  has 
had  any,  and  what,  effect  on  English  methods  and 
habits  of  thought.  But  I  have  no  doubt  that  the 
effect  has  been  considerable.  In  our  day,  tl  e  great 
chasteuer  and  corrector  of  all  investigatioD    and  of 


828  ADMISSION   OF    IRRELEVANT   TESTIMONY. 

the  whole  business  of  inference  from  the  known  to  the 
unknown,  is  scientific  inquiry  into  the  facts  of  nature; 
but  though  its  influence,  great  already,  is  destined  to 
be  much  greater,  it  is  altogether  modern.  English- 
men have  for  long  had,  not  indeed  an  adequate,  but  a 
valuable  substitute  for  it  in  their  law  of  evidence.  I 
do  not  deny  that  they  in  some  degree  owe  this  advan- 
tage to  an  accident.  The  early  rules  of  exclusion 
adopted  by  our  law,  though  founded  on  views  of 
human  conduct  which  contained  a  considerable 
amount  of  truth,  were  soon  seen  to  require  limitation 
if  they  were  to  be  brought  into  still  further  harmony 
with  human  nature ;  and  thus  the  great  practical 
sagacity  which  has  always  distinguished  English 
lawyers  came  to  be  employed  on  the  modification  of 
these  rules — always,  however,  restrained  and  sobered 
by  their  veneration  for  dominant  principles  long  since 
judicially  declared.  The  system  evolved  had  many 
defects,  some  of  which  have  been  removed ;  but  even 
in  its  unimproved  state  it  produced  a  certain  severity 
of  judgment  on  questions  of  fact  which  has  long  been 
a  healthy  characteristic  of  the  English  mind.  The 
experience  of  any  observant  person  will  probably 
supply  him  with  instances  in  point;  but  I  take  a  less 
familiar  example  in  the  specially  English  school  of 
history.  It  has  certainly  been  strongly  affected  by 
canons  of  evidence  havino;  their  ori2:in  in  the  law. 
Nobody  can  doubt  that  the  peculiarities  thus  produced 


ENGLISH  LAW  AND  ENGLISH  THOUGHT.      329 

aro  those  which  distinguish  Hallam,  Grote,  Lewis, 
and  Freeman  from  the  bulk  of  French  or  German 
historians ;  and  for  this  reason  alone  we  may  respect 
the  principle,  dear  to  English  lawyers,  which  in  their 
own  language  runs,  '  Hearsay  is  no  Evidence.' 


ROMAN  LAW  AND  LEGAL  EDUCATION.^ 

If  it  were  worth  our  while  to  inquire  narrowly  into 
the  causes  which  have  led  of  late  years  to  the 
revival  of  interest  in  the  Roman  civil  law,  we  should 
probably  end  in  attributing  its  increasing  popularity 
rather  to  some  incidental  glimpses  of  its  value  which 
have  been  gained  by  the  English  practitioner  in  the 
course  of  legal  business,  than  to  any  widely  diffused 
or  far-reaching  appreciation  of  its  importance  as  an 
instrument  of  knowledge.  It  is  most  certain  that  the 
higher  the  point  of  jurisprudence  which  has  to  be  dealt 
with,  the  more  signal  is  always  the  assistance  derived 
by  the  English  lawyer  from  Roman  law  ;  and  the 
higher  the  mind  employed  upon  the  question,  the 
more  unqualified  is  its  admiration  of  the  system  by 
which  its  perplexities  have  been  disentangled.  But 
the  grounds  upon  which  the  study  of  Roman  juris- 
prudence is  to  be  defended  are  by  no  means  such  as 
to  be  intelligible  only  to  the  subtlest  intellects,  nor 
do  they  await  the  occurrence  of  recondite  points  of 
law  in  order  to  disclose  themselves.     It  is  believed 

*  (Published  in  the  Cambridge  Essays  for  lSd6<) 


ROMAN  AND   ENGLISH   LAW,  331 

that  the  soundness  of  many  of  them  will  be  recognised 
as  soon  as  they  are  stated,  and  to  these  it  is  proposed 
to  call  attention  in  the  present  Essay. 

The  historical  connexion  between  the  Koman 
jurisprudence  and  our  own,  appears  to  be  now  looked 
upon  as  furnishing  one  very  strong  reason  for  in- 
creased attention  to  the  civil  law  of  Rome.  The  fact, 
of  course,  is  not  now  to  be  questioned.  The  vulgar 
behef  that  the  Eno-lish  Common  Law  was  indio^enous 
in  all  its  parts  was  always  so  easily  refuted  by  the 
most  superficial  comparison  of  the  text  of  Bracton 
and  Fleta  with  the  Corpus  Juris,  that  the  honesty  of 
the  historians  who  countenanced  it  can  only  be  de- 
fended by  alleging  the  violence  of  their  prejudices  ; 
and  now  that  the  great  accumulation  of  fragments  of 
ante-Justinianean  compendia,  and  the  discovery  of 
the  MS.  of  Gains,  have  increased  our  acquaintance 
with  the  Roman  law  in  the  only  form  in  which  it  can 
have  penetrated  into  Britain,  the  suspicion  of  a  partial 
earlier  filiation  amounts  almost  to  a  certainty.  The 
fact  of  such  a  filiation  has  necessarily  the  highest  in- 
terest for  the  legal  antiquarian,  and  it  is  of  value 
besides  for  its  effect  on  some  of  the  coarser  preposses- 
sions of  English  lawyers.  But  too  much  importance 
should  not  be  attached  to  it.  It  has  ever  been  the 
case  in  England  that  every  intellectual  importation 
we  have  received  has  been  instantly  coloured  by  the 
peculiarities  of  our   national   habits  and   spirit.     A 


832  REASONS   FOR   INTEREST   IN  ROMAN   LAW. 

foreign  jurisprudence  interpreted  by  the  old  English 
common-lawyers  would  soon  cease  to  be  foreign,  and 
the  Roman  law  would  lose  its  distinctive  character 
with  even  greater  rapidity  than  any  other  set  of  insti- 
tutions. It  will  be  easily  understood  that  a  system 
like  the  laws  of  Rome,  distinguished  above  all  others 
for  its  symmetry  and  its  close  correspondence  with 
fundamental  rules,  would  be  effectually  metamor- 
phosed by  a  very  slight  distortion  of  its  parts,  or  by 
the  omission  of  one  or  two  governing  principles. 
Even  though,  therefore,  it  be  true — and  true  it  cer- 
tainly is — that  texts  of  Roman  law  have  been  worked 
at  all  points  into  the  foundations  of  our  jurisprudence, 
it  does  not  follow,  from  that  fact,  that  our  knowledge 
of  English  law  would  be  materially  improved  by  the 
study  of  the  Corpus  Juris  ;  and  besides,  if  too  much 
stress  be  laid  on  the  historical  connexion  between  the 
systems,  it  will  be  apt  to  encourage  one  of  the  most 
serious  errors  into  which  the  inquirer  into  the  philo- 
sophy of  law  can  fall.  It  is  not  because  our  own 
jurisprudence  and  that  of  Rome  were  once  alike  that 
they  ought  to  be  studied  together — it  is  because  they 
will  he  alike.  It  is  because  all  laws,  however  dissimi- 
lar in  their  infancy,  tend  to  resemble  each  other  in 
their  maturity  ;  and  because  we  in  England  are 
slowly,  and  perhaps  unconsciously  or  unwillmgly,  but 
still  steadily  and  certainly  accustoming  ourselves  to 
the  same  modes  of  leffal  tlioufrht  and  to  the  same 


IMPORTANCE    OP   ROMAN   LAW.  333 

conceptions  of  legal  principle  to  which  the  Roman 
jurisconsults  had  attained  after  centuries  of  accumu- 
lated experience  and  unwearied  cultivation. 

The  attempt,  however,  to  explain  at  length  why 
the  flux  and  change  which  our  law  is  visibly  under- 
going furnish  the  strongest  reasons  for  studying  a 
body  of  rules  so  mature  and  so  highly  refined  as  that 
contained  in  the  Corpus  Juris^  would  be  nearly  the 
same  thing  as  endeavouring  to  settle  the  relation  of 
the  Roman  law  to  the  science  of  jurisprudence  ;  and 
that  inquiry,  from  its  great  length  and  difficulty, 
it  would  be  obviously  absurd  to  prosecute  within 
the  limits  of  an  Essay  like  the  present.  But  there 
is  a  set  of  considerations  of  a  different  nature, 
and  equally  forcible  in  their  way,  which  cannot  be 
too  strongly  impressed  on  all  who  have  the  control 
of  legal  or  general  education.  The  point  which 
they  tend  to  establish  is  this  : — the  immensity  of 
the  ignorance  to  which  we  are  condemned  by 
ignorance  of  Roman  law.  It  may  be  doubted 
whether  even  the  best  educated  men  in  England  can 
fully  realise  how  vastly  important  an  element  is 
Roman  law  in  the  general  mass  of  human  know- 
ledge, and  how  largely  it  enters  into  and  pervades 
and  modifies  all  products  of  human  thought  which 
are  not  exclusively  English.  Before  we  endeavour 
to  give  some  distant  idea  of  the  extent  to  which  this 
is  true,  we  must  remind  the  reader  that  the  Roman 


3^4  NATURE    OF   EOMAJ^"   LAW. 

law  is  not  a  system  of  cases,  like  our  own.  It  is 
a  system  of  which  the  nature  may,  for  practical 
purposes,  though  inadequately,  be  described  by  saying 
that  it  consists  of  principles,  and  of  express  written 
rules.  In  England,  the  labour  of  the  lawyer  is  to 
extract  from  the  precedents  a  formula,  which,  while 
covering  them,  will  also  cover  the  state  of  facts  to  be 
adjudicated  upon  ;  and  the  task  of  rival  advocates  is, 
from  the  same  precedents,  or  others,  to  elicit  differ- 
ent formulas  of  equal  apparent  applicability.  Now, 
in  Roman  law  no  such  use  is  made  of  precedents. 
The  Corpus  Juris,  as  may  be  seen  at  a  glance, 
contains  a  great  number  of  what  our  English  law- 
yers would  term  cases  ;  but  then  they  are  in  no 
respect  sources  of  rules — they  are  instances  of  their 
application.  They  are,  as  it  were,  problems  solved 
by  authority  in  order  to  throw  light  on  the  rule,  and 
to  point  out  how  it  should  be  manipulated  and 
applied.  How  it  was  that  the  Roman  law  came  to 
assume  this  form  so  much  sooner  and  more  com- 
pletely than  our  own,  is  a  question  full  of  interest, 
and  it  is  one  of  the  first  to  which  the  student  should 
address  himself ;  but  though  the  prejudices  of  an 
Englishman  will  probably  figure  to  him  a  juris- 
prudence thus  constituted  as,  to  say  the  least,  anoma- 
lous, it  is,  nevertheless,  quite  as  readily  conceived, 
and  quite  as  natural  as  the  constitution  of  our  own 
system.     In  proof  of  this,  it  may  be  remarked  that 


DIFFEEENCE    BETWEEN    ENGLISH   AND    ROiL\N    LAW.    33£ 

the  English  common  law  was  clearly  conceived  by  its 
earliest  expositors  as  wearing  something  of  this 
character.  It  was  regarded  as  existing  somewhere  in 
the  form  of  a  symmetrical  body  of  express  rules, 
adjusted  to  definite  principles.  The  knowledge  of 
the  system,  however,  in  its  full  amplitude  and  pro- 
portions was  supposed  to  be  confined  to  the  breasts 
of  the  judges,  and  the  lay-public  and  the  mass  of  the 
legal  profession  were  only  permitted  to  discern  its 
canons  intertwined  with  the  facts  of  adjudged  cases. 
Many  traces  of  this  ancient  theory  remain  in  the 
language  of  our  judgments  and  forensic  arguments, 
and  among  them  we  may  perhaps  place  the  singular 
use  of  the  word  '  principle  '  in  the  sense  of  a  legal 
proposition  elicited  from  the  precedents  by  com- 
parison and  induction. 

The  proper  business  of  a  Roman  jurisconsult  waa 
therefore  confined  to  the  interpretation  and  applica- 
tion of  express  written  rules — processes  which  must, 
of  course,  be  to  some  extent  employed  by  the  pro- 
fessors of  every  system  of  laws — of  our  own  among 
others,  when  we  attempt  to  deal  with  statute  law. 
But  the  great  space  which  they  filled  at  Rome  has 
no  counterpart  in  English  practice;  and  becoming, 
as  they  did,  the  principal  exercise  of  a  class  of  men 
characterised  as  a  whole  by  extraordinary  subtlety 
%nd  patience,  and  in  individual  cases  by  extri- 
ordinary  genius,    they  were  the  means    of  produ:- 


SS8  ROMAN  METHODS   OP   INTERPRETATION. 

ing  results  which  the  English  practitioner  wants 
centuries  of  attaining.  We,  who  speak  without 
shame — occasionally  with  something  like  pride — of 
our  ill  success  in  construing  statutes,  have  at  our 
command  nothing  distantly  resembling  the  appliances 
which  the  Roman  jurisprudence  supplies,  partly  by 
definite  canons  and  partly  by  appropriate  examples, 
for  the  understanding  and  management  of  written 
law.  It  would  not  be  doing  more  than  justice  to 
the  methods  of  interpretation  invented  by  the 
Roman  lawyers,  if  we  were  to  compare  the  power 
which  they  give  over  their  subject-matter  to  the 
advantage  which  the  geometrician  derives  from 
mathematical  analysis  in  discussing  the  relations  of 
space.  By  each  of  these  helps,  difficulties  almost 
insuperable  become  insignificant,  and  processes 
nearly  interminable  are  shortened  to  a  tolerable 
compass.  The  parallel  might  be  carried  still  further, 
and  we  might  insist  on  the  special  habit  of  mind 
which  either  class  of  mental  exercise  induces. 
Most  certainly  nothing  can  be  more  peculiar,  special, 
and  distinct  than  the  bias  of  thought,  the  modes  of 
reasonmg,  and  the  habits  of  illustration,  which  are 
given  by  a  training  in  the  Roman  law.  No  tension 
of  mind  or  length  of  study  which  even  distantly 
resembles  the  labour  of  mastering  English  juris- 
prudence is  necessary  to  enable  the  student  to 
realise  these  peculiarities  of  mental  view ;  but  still 
they  cannot   be  acquired   without  some    effort,  and 


SCHOOLS   OF   MORAL   PHILOSOPHY.  337 

the  question  is,  whether  the  effort  which  they  de- 
mand brings  with  it  sufficient  reward.  We  can  only 
answer  by  endeavouring  to  point  out  that  they  per- 
vade whole  departments  of  thought  and  inquiry  of 
which  some  knowledge  is  essential  to  every  lawyer, 
and  to  every  man  of  decent  cultivation. 

In  the  first  place,  it  is  to  be  remarked,  that 
all  discussion  concerning  Moral  Philosophy  has  for 
nearly  two  centuries  been  conducted  on  the  Con- 
tinent of  Europe  in  the  language  and  according  to 
the  modes  of  reasoning  peculiar  to  the  Roman  Civil 
Law.  Shortly  after  the  Reformation,  we  find  two 
great  schools  of  thought  dividing  this  class  of  subjects 
between  them.  The  most  influential  of  the  two  was 
at  first  the  sect  or  school  known  to  us  as  the  Casuists, 
all  of  them  in  spiritual  communion  with  the  Roman 
Catholic  Church,  and  nearly  all  of  them  affiliated  to 
one  or  other  of  her  religious  orders.  On  the  other 
side  were  a  body  of  writers  connected  with  each 
other  by  a  common  intellectual  descent  from  the 
great  author  of  the  treatise  De  Jure  Belli  et  Pads, 
Hugo  Grotius.  Almost  all  of  the  latter  were  adhe- 
rents of  the  Reformation,  and,  though  it  cannot  be 
said  that  they  were  formally  and  avowedly  at  con- 
flict with  the  Casuists,  the  origin  and  object  of  their 
system  were,  nevertheless,  essentially  different  from 
those  of  Casuistry.  It  is  necessary  to  call  attention 
to  this  difference,  because  it  involves  the  question  of 

z 


338  TREATISE   OF   GROTIUS. 

the  influence  of  Roman  law  on  that  department  of 
thought  with  which  both  systems  are  concerned.  The 
book  of  Grotius,  though  it  touches  questions  of  pure 
Ethics  in  every  page,  and  though  it  is  the  parent, 
immediate  or  remote,  of  innumerable  volumes  of 
formal  morality,  is  not,  as  is  well  known,  a  professed 
treatise  on  Moral  Philosophy ;  it  is  an  attempt  to 
determine  the  Law  of  Nature,  or  Natural  Law.  Now, 
without  entering  upon  the  question,  whether  the  con- 
ception of  a  liaw  Natural  be  not  exclusively  a  creation 
of  the  Roman  jurisconsults,  we  may  lay  down  that, 
even  on  the  admissions  of  Grotius  himself,  the  dicta 
of  the  Roman  jurisprudence  as  to  what  parts  of 
known  positive  law  must  be  taken  to  be  parts  of  the 
Law  of  Nature,  are,  if  not  infallible,  to  be  received,  at 
all  events,  with  the  profoundest  respect.  Hence  the 
system  of  Grotius  is  implicated  with  Roman  law  at  its 
very  foundation ;  and  this  connexion  rendered  inevi- 
table— what  the  legal  training  of  the  writer  would 
perhaps  have  entailed  without  it — the  free  employ- 
ment in  every  paragraph  of  technical  phraseology, 
and  of  modes  of  reasoning,  defining,  and  illustrating, 
which  must  sometimes  conceal  the  sense,  and  almost 
always  the  force  and  cogency,  of  the  argument  from 
the  reader  who  is  unfamiliar  with  the  sources  whence 
they  have  been  derivsd.  On  the  other  hand.  Casuistry 
borrows  little  from  Roman  law.  A  few  technical 
expressions,  of  Roman  origin,  have  penetrated  intc 


THE   CASUISTS.  339 

its  language  through  the  medium  of  the  Canon  law  ; 
but  the  form  of  the  argument  in  the  Casuistical  writers 
is  mostly  taken  from  the  course  of  a  theological  dis- 
putation in  one  of  the  academical  schools,  and  the 
views  of  morality  contended  for  have  nothing  what- 
ever in  common  with  the  undertaking  of  Grotius. 
All  that  philosophy  of  right  and  wrong  which  has 
become  famous,  or  infamous,  under  the  name  of 
Casuistry,  had  its  origin^  in  the  distinction  between 
Mortal  and  Yenial  Sin.  A  natural  anxiety  to  escape 
the  awful  consequences  of  determinmg  a  particular 
act  to  be  mortally  sinful,  and  a  desire,  equally  intel- 
ligible, to  assist  the  Roman  Catholic  Church  in  its 
conflict  with  Protestantism  by  disburthening  it  of 
an  inconvenient  theory,  were  the  moti\'es  which 
impelled  the  authors  of  the  Casuistical  philosophy 
to  the  invention  of  an  elaborate  system  of  criteria,  in- 
tended to  remove  immoral  actions,  in  as  many  cases 
as  possible,  out  of  the  category  of  mortal  offences, 
and  to  stamp  them  as  venial  sins.  The  fate  of 
this  experiment  is  matter  of  ordinary  history.  We 
know  that  the  distinctions  of  Casuistry,  by  enab- 
ling the  priesthood  to  adjust  spiritual  control  to  all 
the  varieties  of  human  character,  did  reallv  confer 
on   it   an    influence   with     princes,    statesmen,   and 

'  This  subject  is  fully   and  clearly   discussed  by  Mr.  Jowott 
Epistles  of  St.  Paul,  Yol  ii.,  pp.  351,  352. 

z  2 


540  THE  PKOVINCIAL   IJJTTERS. 

generals  unheard  of  in  the  ages  before  the  Reforma' 
tion,  and  did  really  contribute  largely  to  that  great 
reaction  which  checked  and  narrowed  the  first  suc- 
cesses of  Protestantism.  But  beginning  in  the  at- 
tempt, not  to  establish,  but  to  evade — not  to  discover 
a  principle,  but  to  escape  a  postulate — not  to  settl€ 
the  nature  of  right  and  wrong,  but  to  determine  what 
was  not  wrong  of  a  particular  nature, — Casuistry 
went  on  with  its  dexterous  refinements  till  it  ended 
in  so  attenuating  the  moral  features  of  actions,  and 
so  belying  the  moral  instincts  of  our  being,  that  at 
length  the  conscience  of  mankind  rose  suddenly  in 
revolt  against  it,  and  consigned  to  one  common  ruin 
the  system  and  its  doctors.  The  blow,  long  impend- 
ing, was  finally  struck  in  the  Provincial  Letters  of 
Pascal ;  and  since  the  appearance  of  those  memorable 
Papers,  no  moralist  of  the  smallest  influence  or  credit 
has  ever  avowedly  conducted  his  speculations  in  the 
footsteps  of  the  Casuists.  The  whole  field  of  ethical 
scienc«i  was  thus  left  at  the  exclusive  command  of  the 
writers  who  followed  Grotius ;  and  it  still  exhibits  in 
an  extraordinary  degree  the  traces  of  that  entangle- 
ment with  Eoman  law  which  is  sometimes  imputed 
as  a  fault,  and  sometimes  as  the  highest  of  its  recom- 
mendations, to  the  Grotian  theory.  Many  inquirers 
since  Grotius's  day  have  modified  his  principles,  and 
many,  of  course,  since  the  rise  of  the  Critical  PliUo- 
Bophy,  have  quite  deserted  them  ;  but  even  those  who 


ROMAN  LAW  IN  MORAL  AND  POLITICAL  PHILOSOPHY.    341 

have  departed  most  widely  from  his  fundamental 
assumptions  have  inherited  much  of  his  method  of 
statement,  of  his  train  of  thought,  and  of  his  mode  of 
illustration  ;  and  these  have  little  meaning  and  no 
point  to  the  person  ignorant  of  Roman  jurispru- 
dence. And,  moreover,  as  speculations  on  ethics  are 
implicated  Avith,  and  exercise  perceptible  effect  on, 
almost  every  department  of  inquiry  which  is  not  part 
of  physics  or  physiology,  the  element  of  Roman  law 
in  the  ethical  systems  of  the  Continent  makes  itself 
felt  in  quarters  where,  at  first  sight,  one  is  quite  un- 
able to  understand  its  presence.  There  is  reason  to 
believe  that  we  in  England  attach  much  too  slight  an 
importance  to  that  remarkable  tinge  of  Roman  law 
which  is  all  but  universal  in  the  moral  and  political 
philosophy  of  Continental  Europe.  It  has  often  been 
remarked  with  regret  or  surprise  that,  while  the 
learned  in  the  exacter  sciences  abroad  and  in  England 
have  the  most  perfect  sympathy  with  each  other — 
while  the  physician  or  the  mathematician  in  London 
is  completely  at  home  in  the  writings  of  the  physician, 
or  the  mathematician  in  Berlin  and  Paris — there  is  a 
sensible,  though  invisible  and  impalpable,  barrier 
which  separates  the  jurists,  the  moral  philosophers, 
the  politicians,  and,  to  some  extent,  the  historians 
and  even  the  metaphysicians  of  the  Continent  from 
those  who  professedly  follow  the  same  pursuits  in 
England.     A  vague  reference  to  our  insular  positiop 


S42  MORAL   PHILOSOPHY. 

gives  no  clue  to  this  anomaly.  The  exceptionai 
character  of  our  political  institutions  but  partially 
explains  it.  Some  difference  in  the  intellectual  train- 
ing of  Englishmen  from  that  of  foreigners  must  lie  at 
the  bottom  of  it,  and  the  general  mass  of  our  acquire- 
ments is  unhke  that  accumulated  by  educated  men  in 
other  countries  simply  in  the  total  omission  of  the 
ingredient  of  Roman  law. 

If  these  views  are  correct,  the  argument  for  the 
cultivation  of  Roman  law  as  a  branch  of  English  legal 
education  will  have  been  carried  some  way,  for  it  is 
probably  unnecessary  to  show  at  length  the  intimate 
relation  of  moral  philosophy  to  jurisprudence.  Per- 
haps the  state  of  Enghsli  thought  on  ethical  subjects 
may  seem  to  take  away  something  from  the  force 
of  the  reasoning.  Unquestionably,  the  writings  of 
Locke,  and  the  immense  development  of  Locke's 
doctrines  by  Bentham,  have  given  us  an  ethical 
system  which  exercises  very  deep  influence  on  tlie 
intellectual  condition  of  England,  and  which  at  the 
same  time  borrows  little  or  nothing  from  Roman  law. 
The  objection,  however,  may  be  answered  in  several 
ways.  While  it  is  doubtful  whether  it  is  desirable  or 
possible  that  moral  philosophy  should  be  taught  in 
England  on  any  one  set  of  principles,  it  is  certainly 
neither  desirable  nor  possible  that  it  should  be  taught 
apart  from  its  history.  Moreover,  the  disconnexion 
between  the  Roman  law  and  the  philosophy  of  Bentham 


LAW    OF   NATURE.  84S 

exists  rather  in  form  than  in  substance.  The  latest 
and  most  sagacious  expositors  of  Bentham  have  for- 
mally declared  ^  their  preference  for  the  phraseology 
and  the  methods  of  Roman  jurisprudence;  and, 
indeed,  there  would  be  no  great  presumption  in 
asserting  that  much  of  the  laborious  analysis  which 
Bentham  appUed  to  legal  conceptions  was  directed  to 
the  establishment  of  propositions  which  are  among 
the  fundamental  assumptions  of  the  jurisconsults. 
Truths  which  the  language  of  English  law,  at  once 
ultra-popular  and  ultra-technical,  either  obscures  or 
conceals,  shine  clearly  through  the  terminology  of 
the  Roman  lawyers  ;  and  it  is  difficult  to  believe  that 
they  would  ever  have  been  lost  sight  of,  if  English 
common  sense  had  been  protected  against  delusion  by 
knowledge  of  a  system  of  which  common  sense  is  the 
governing  characteristic.  It  is  remarkable,  too,  that 
the  law  of  England,  wherever  it  touches  moral  philo- 
sophy openly  and  avowedly,  touches  it  at  the  point  at 
which  it  is  most  deeply  implicated  with  Roman  law. 
It  is  difficult  to  read  the  early  Equity  Reports  with- 
out beiug  struck  by  the  influence  which  a  particular 
school  of  jurists — the  series  of  writers  on  the  Law  of 
Nature — had  on  the  minds  of  the  judges  who  first 
gave  form  and  system  to  the  jurisprudence  of  the 
Court  of  Chancery.     Now,  in  the  volumes  of  this 

^  Austin,  Province  of  Jurispi-udence  Determined,  App.  pp.  dS 
tt  eeq. 


844  LEGAL   PHEASEOLOGT. 

school,  not  only  does  moral  philosophy  retain  the 
phraseology  and  the  modes  of  reasoning  peculiar  to 
Roman  law,  but  the  two  departments  of  thought  have 
not  as  yet  been  recognised  as  separable,  and  as 
capable  of  being  considered  apart  from  each  other. 
Even  now,  whenever  a  proposition  of  moral  philosophy 
makes  its  appearance  in  an  argument  or  in  a  judicial 
decision,  it  generally  appears  in  the  dress  which  was 
given  to  it  by  the  first  successors  of  Grotius.  This 
peculiarity  may,  perhaps,  be  partially  accounted  for 
by  the  credit  into  which  Story's  Conflict  of  Laws — in 
the  main  a  compendium  of  extracts  from  the  writers 
just  mentioned — has  risen  among  us  as  an  authority 
on  Private  International  Law. 

We  are  here  brought  to  rhe  verge  of  some  con- 
siderations of  a  rather  different  character.  In  every 
language  there  are  necessarily  a  number  of  words  and 
phrases  which  are  indicative  of  legal  conceptions,  and 
which  carry  with  them  a  perpetual  reference  to  the 
nature  and  the  sanctions  of  law.  Without  such  ex- 
pressions, a  vast  variety  of  propositions  in  philosophy, 
in  political  economy,  in  theology,  and  even  in  strict 
science,  could  never  be  put  into  words.  Now,  it  is 
remarkable  that  the  English  language  derives  a  very 
small  number  of  these  expressions  from  English  law; 
and,  indeed,  few  things  are  more  curious,  or  more 
illustrative  of  the  peculiar  relation  in  which  the  law 
of  England  has  always  stood  to  the  other  departments 


LEGAL   PHRASEOLOGY.  345 

of  English  thought,  than  the  slightness  of  the  in- 
fluence which  our  jurisprudence  has  exercised  on  our 
tongue.  The  Law  of  Procedure  and  some  other  sub- 
ordinate departments  have  contributed,  though  not 
largely,  to  enrich  our  vernacular  dialect ;  and  both  in 
England  and  in  America  a  considerable  number  of 
legal  phrases  have  acquired  currency  as  slang;  but 
the  expressions  in  classical  English  which  are  indica- 
tive of  fundamental  legal  conceptions,  come  to  us, 
almost  without  an  exception,  from  Roman  law.  They 
have  filtered  into  the  language  from  a  variety  of 
sources,  and  never  having  been  kept  to  their  original 
meaning  by  any  controlling  system  or  theory,  they 
have  become  mere  popular  expressions,  exhibiting  all 
the  deficiencies  of  popular  speech — vague,  figurative, 
and  inconsistent.  Looked  at  even  fi'om  an  unpro- 
fessional point  of  view,  this  is  a  great  evil.  Unhke 
other  nations,  we  lose  all  the  advantage  of  having 
the  most  important  terms  of  our  philosophical  phrase- 
ology scrutinized,  sifted,  and  canvassed  by  the  keen 
intellect  of  lawyers;  and  we  deprive  ourselves  of  that 
remarkable,  and  almost  mysterious,  precision  which  is 
given  to  words,  when  they  are  habitually  used  in  dis- 
cussions which  are  to  issue  directly  in  acts.  It  is 
difficult  to  say  how  much  of  the  inferiority  of  Eng- 
land in  philosophical  speculation  is  owing  to  this 
laxity  of  language ;  and  even  if  the  mischiefs  which 
it  is  calculated  to  produce  were  in  themselves  trifling, 


346  LANGUAGE    OF   PROFESSIONAL    LAWYERS. 

they  would  become  formidable  in  a  country  which  ia 
governed  by  free  discussion.  We  can  easily  trace 
their  effects  on  minds  of  rigid  accuracy.  Bentham 
was  driven  by  them  to  mvent  a  new  vocabulary  of 
his  own,  which  is  still  the  greatest  obstacle  to  his  in- 
fluence. Mr.  Austin  can  only  evade  them  by  a  style 
out  of  which  metaphor  has  been  weeded  till  it  has 
become  positively  repulsive.  Dr.  Whewell  has  ac- 
knowledged them  by  repeatedly  falling  back  on  the 
strict  usage  of  the  Roman  jurisconsults.  The  evil, 
however,  is  not  one  which  is  felt  solely  by  writers  on 
the  philosophy  of  jurisprudence.  It  extends  to  pro- 
fessional lawyers.  Like  all  men  who  speak  and  think, 
they  employ  the  expressions  which  have  been  described 
as  inherited  by  us  from  Roman  law;  but  they  employ 
them  solely  as  popular  expressions — as  expressions 
which  serve  merely  to  eke  out  technical  phraseology. 
Even  '  Obligation,'  the  term  of  highest  dignity  and 
importance  in  all  jurisprudence,  is  not  defined  in 
English  law,  and  is  used  by  our  lawyers  with  reckless 
inconsistency.  The  consequence  is  not  quite  the  same 
as  on  the  unprofessional  world.  It  would  be  absurd 
to  tax  the  English  Bench  and  Bar  with  inaccurate 
thinking.  But  the  natural  resource  of  an  accurate 
mind,  dealing  with  mere  popular  language,  is  pro- 
lixity. Words  and  phrases  nmst  be  constantly  qualified 
and  limited,  and  every  important  proposition,  to  pre- 
vent misapprehension,  must  be  put  in  a  great  variety 


ENGLISH   TECHNICALITIES.  847 

of  forms.  Hence  the  extraordinary  length  of  oir 
forensic  arguments  and  legal  decisions.  Hence  that 
frightful  accumulation  of  case-law  which  conveys  to 
English  jurisprudence  a  menace  of  revolution  far  more 
serious  than  any  popular  murmurs,  and  which,  if  it 
does  nothing  else,  is  giving  to  mere  tenacity  of  memory 
a  disgraceful  advantage  over  all  the  finer  quahties  of 
the  legal  intellect. 

There  never,  probably,  was  a  technical  phraseology 
which,  unaided  by  popular  language,  was  in  itself 
sufficient  for  all  the  uses  of  lawyers.  Where,  how- 
ever, the  technical  vocabulary  is  fairly  equal  to  the 
problems  which  have  to  be  discussed,  the  inconve- 
niences just  alluded  to  are  reduced  to  a  minimum. 
Is  this  the  case  with  English  law?  It  is  impossible 
to  answer  the  question  without  calling  attention  to 
the  singular  condition  of  our  whole  legal  language. 
The  technical  part  of  it — whatever  may  be  thought 
of  the  system  to  which  it  was  an  appendage — was 
certainly  once  quite  able  to  cope  with  aU  the  points 
which  arose  ;  nor  did  it  drop  or  relax  any  of  its  re- 
markable precision  in  solving  them.  But  its  service- 
ableness  has  long  since  ceased.  The  technicalities  of 
English  law  have  lost  all  their  rigidity  and  accuracy 
without  at  the  same  time  becoming  equal  to  the  dis- 
cussion of  the  questions  which  press  daily  on  the  at- 
tention of  the  Bench  and  the  Bar.  We  misuse  our 
terms  of  art  without   scruple — freely  applying,  hr 


848  LEGAL   AM)    LEGISLATIVE    EXPRESSION. 

example,  to  Personalty  expressions  which,  having 
their  origin  in  real  property  law,  are  ultimately 
referrible  to  feudal  conceptions — and  yet  we  have 
to  call  in  popular  phraseology  to  an  extent  unknown 
in  any  other  system.  Nothing  harsher  can  be  said 
of  a  legal  vocabulary,  than  that  it  consists  of  technical 
phraseology  in  a  state  of  disintegration,  and  of  popu- 
lar language  employed  without  even  an  affectation  of 
precision.  Yet  this  reproach  is  the  literal  truth  as 
respects  the  law  of  England.  Many  causes  may  be 
assigned  for  it.  The  eccentric  course  of  our  law 
reforms  has,  doubtless,  contributed  to  it  ;  and  it 
should  not  be  forgotten  that  lawyers  are  apt  to  strain 
technical  terms  to  new  uses,  under  a  sense  of  their 
superiority  to  language  borrowed  from  ordinary  dis- 
course. But  the  grand  cause  of  all  has  been  the 
slightness  of  the  care  which,  owing  to  the  absence  of 
an  organized  educational  system,  has  been  bestowed 
in  England  upon  Legal  and  Legislative  Expression. 
The  heterogeneousness  of  the  sources  from  which  our 
tongue  has  been  derived  appears  to  impose  on  us, 
more  than  on  any  other  nation,  the  duty  of  nurturing 
this  branch  of  legal  science  ;  and  yet  there  is  no 
nation  in  the  world  which  has  neglected  it  so  signally. 
The  evil  consequences  of  our  indifference  have  at 
length  become  patent  and  flagrant.  They  make 
themselves  felt  on  all  sides.  They  are  seen  in  the 
lengthiness  of  our  Law  Reports.     They  show  them' 


LEGAL   AXD    LEGISLATIVE    EXPRESSION.  349 

selves  in  the  miscarriages  of  our  Acts  of  Parliament, 
They  put  us  to  the  blush  in  the  clumsiness  of  our 
attempts  to  grapple  with  the  higher  problems  of  law. 
It  would  be  impertinent  to  pretend  that  any  one  com- 
plete remedy  can  be  pointed  out,  but  it  may  be 
affirmed  without  hesitation  that  several  palliatives 
are  within  our  reach.  Though  the  decay  of  the 
technical  element  m  our  legal  dialect  is  probably 
beyond  help,  a  far  greater  amount  of  definiteness, 
distinctness,  and  consistency  might  assuredly  be 
given  to  the  popular  ingredient.  Legal  terminology 
might  be  made  a  distinct  department  of  legal  educa- 
tion ;  and  there  is  no  question  that,  with  the  help  of 
the  Roman  law,  its  improvement  might  be  carried  on 
almost  indefinitely.  The  uses  of  the  Roman  juris- 
prudence to  the  student  of  Legislative  and  Legal  Ex- 
pression are  easily  indicated.  First,  it  serves  him  as 
a  great  model,  not  only  because  a  rigorous  consistency 
of  usage  pervades  its  whole  texture,  but  because  it 
shows,  by  the  history  of  the  Institutional  Treatises, 
in  what  way  an  undergrowth  of  new  technical 
language  may  be  constantly  reared  to  fiu-nish  the 
means  of  expression  to  new  legal  conceptions,  and  to 
supply  the  place  of  older  technicalities  as  they  fall 
into  desuetude.  Next,  it  is  the  actual  source  of  what 
has  been  here  called  the  popular  part  of  our  legal 
dialect ;  a  host  of  words  and  phrases,  of  which 
'  Obligation,'    '  Convention,'    '  Contract,'    '  Consent,' 


860  IMPROVEMENT   OF    TECHNICAL   LAKGUAGB. 

'Possession,'  and  '  Prescription,'  are  only  a  few  sample^^ 
are  employed  in  it  with  as  much  precision  as  are,  or 
Tvere,  'Estate  Tail'  and  'Remainder'  in  English  law. 
Lastly,  the  Roman  jurisprudence  throws  into  a 
definite  and  concise  form  of  words  a  variety  of  legal 
conceptions  which  are  necessarily  realized  by  English 
lawyers,  but  which  at  present  are  expressed  differently 
by  different  authorities,  and  always  in  vague  and 
general  language.  Nor  is  it  over-presumptuous  to 
assert  that  laymen  would  benefit  as  much  as  lawyers 
by  the  study  of  this  great  system.  The  whole  phi- 
losophical vocabulary  of  the  country  might  be 
improved  by  it,  and  most  certainly  that  region  of 
thought  which  connects  Law  with  other  branches  of 
speculative  inquiry,  would  obtain  new  facihties  for 
progress.  Perhaps  the  greatest  of  all  the  advantages 
which  would  flow  from  the  cultivation  of  the  Roman 
jurisprudence  would  be  the  acquisition  of  a  phrase- 
ology not  too  rigid  for  employment  upon  points  of 
the  philosophy  of  law,  nor  too  lax  and  elastic  for 
their  lucid  and  accurate  discussion. 

In  the  identity  of  much  of  our  popular  legal 
phraseology  with  the  technical  dialect  of  Roman  law 
we  have  one  chief  source  of  the  intellectual  mist 
which  interposes  itself  between  an  Englishman  and  a 
large  part  of  Continental  philosophy.  We  have  also 
the  chief  reason  why  it  is  so  difficult  to  convince  au 
Eno;lishman  that  any  such  impediment  exists.     Deal- 


LANGUAGE  OF  INTEKNATIONAL  LAW.        361 

ing,  for  the  most  part,  with  language  to  which  he  is 
accustomed,  he  can  scarcely  be  persuaded  that  he 
gains  at  most  that  sort  of  half  knowledge  which,  as 
every  lawyer  knows,  an  intelligent  layman  will 
acquire  from  the  perusal  of  a  legal  treatise  on  a 
branch  of  law  in  which  the  technical  usage  of  words 
does  not  widely  differ  from  the  vernacular.  There 
is,  however,  one  subject  of  thought  common  to  our- 
selves and  the  Continent,  on  which  scarcely  one  man 
among  us  has  probably  consulted  foreign  writers  of 
repute  without  feeling  that  he  is  in  most  imperfect 
contact  with  his  authorities.  It  is  the  secret  belief  of 
many  of  the  most  accurate  minds  in  England  that 
International  Law,  Public  and  Private,  is  a  science  of 
declamation  ;  and,  when  phraseology  intended  by  the 
writer  to  be  taken  strictly  is  understood  by  the  reader 
loosely,  the  impression  is  not  at  all  unnatural.  We 
cannot  possibly  overstate  the  value  of  Roman  Juris- 
prudence as  a  key  to  International  Law,  and  particu- 
larly to  its  most  important  department.  Knowledge 
of  the  system  and  knowledge  of  the  history  of  the 
system  are  equally  essential  to  the  comprehension  of 
the  Public  Law  of  Nations.  It  is  true  that  inadequate 
views  of  the  relation  in  which  Roman  law  stands  to 
the  International  scheme  are  not  confined  to  English- 
men. Many  contemporary  publicists,  writing  in 
languages  other  than  ours,  have  neglected  to  p^ace 
themselves    at  the   point   of  view   from    which  tic 


jy>2  HISTORY   OP    INTERNATIONAL  LAW. 

originators  of  Public  Law  regarded  it ;  and  to  hia 
omission  we  must  attribute  much  of  the  arbitrary 
assertion  and  of  the  fallacious  reasoning  with  which 
the  modern  literature  of  the  Law  of  Nations  is  un- 
fortunately rife.  If  International  Law  be  not  studied 
historically — if  we  fail  to  comprehend,  first,  the  in- 
fluence of  certain  theories  of  the  Roman  jurisconsults 
on  the  mind  of  Hugo  Grotius,  and,  next,  the  influence 
of  the  great  book  of  Grotius  on  International  Juris- 
prudence,— we  lose  at  once  all  chance  of  comprehend- 
ing that  body  of  rules  which  alone  protects  the 
European  commonwealth  from  permanent  anarchy, 
we  blind  ourselves  to  the  principles  by  conforming 
to  which  it  coheres,  we  can  understand  neither  its 
strength  nor  its  weakness,  nor  can  we  separate  those 
arrangements  which  can  safely  be  modified  from  those 
which  cannot  be  touched  without  shaking  the  whole 
fabric  to  pieces.  The  authors  of  recent  international 
treatises  have  brought  into  such  slight  prominence 
the  true  principles  of  their  subject,  or  for  those  prin- 
ciples have  substituted  assumptions  so  untenable,  as 
to  render  it  matter  of  no  surprise  that  a  particular 
school  of  politicians  should  stigmatize  International 
[^aw  as  a  haphazard  collection  of  arbitrary  rules, 
resting  on  a  fanciful  basis  and  fortified  by  a  wordy 
rhetoric.  Englishmen,  however, — and  the  critics  al- 
luded to  are  mostly  Englishmen, — will  always  be 
more  signally  at  fault  than  the  rest  of  the  world  in 


KOMAN   LAW   AND    INTERNATIONAL    LAW  353 

attempting  to  gain  a  clear  view  of  the  Law  of  JSations. 
They  are  met  at  every  point  by  a  vein  of  thought  and 
ilhistration  which  their  education  renders  strange  to 
them;  many  of  the  technicahties  delude  them  by 
consonance  with  familiar  expressions,  while  to  the 
meaning  of  others  they  have  two  most  insufficient 
guides  in  the  Latin  etymology  and  the  usage  of  the 
equivalent  term  in  the  non-legal  literature  of  Rome. 
Little  more  than  a  year  has  elapsed  since  the  Lower 
House  of  the  English  Parliament  occupied  several 
hours  with  a  discussion  as  to  the  import  of  one  of  the 
commonest  terms  ^  inherited  by  modern  jurisprudence 
from  Roman  law.  Nor  are  these  remarks  answered 
by  urging  that  comparative  ignorance  of  International 
Law  is  of  little  consequence  so  long  as  the  parties  to 
International  discussions  completely  understand  each 
other  ;  or,  as  it  might  be  put,  that  Roman  law  may  be 
important  to  the  closet-study  of  the  Law  of  Nations, 
but  is  unessential  as  regards  diplomacy.  There  cannot 
be  a  doubt  that  our  success  in  negotiation  is  sometimes 
perceptibly  affected  by  our  neglect  of  Roman  law; 
for,  from  this  cause,  we  and  the  public,  or  negotiators, 
of  other  countries  constantly  misunderstand  each 
other.  It  is  not  rarely  that  we  refuse  respect  or  at 
tention  to  diplomatic  communications,  as  wide  of  the 
point  and  full  of  verbiage  or  conceits,  when,  in  fact, 

'  Solidairement.     Hansard's  Parliamentary  Debates^  J'-ily  27th, 
1855. 

A  A 


354  ROMAN   LAW   AND   DIPLOMACY. 

tliey  owe  those  imaginary  imperfections  simply  to  the 
juristical  point  of  view  from  which  they  have  been 
conceived  and  written.  And,  on  the  other  hand, 
state -papers  of  English  origin,  which  to  an  English- 
man's mind  ought,  from  their  strong  sense  and  direct- 
ness, to  carry  all  before  them,  will  often  make  but  an 
inconsiderable  impression  on  the  recipient  from  their 
not  falling  in  with  the  course  of  thought  which  he 
insensibly  pursues  when  dealing  with  a  question 
of  public  law.  In  truth,  the  technicalities  of  Roman 
law  are  as  really,  though  not  so  visibly,  mixed  up 
with  questions  of  diplomacy  as  are  the  technicalities 
of  special  pleading  with  points  of  the  English  Common 
law.  So  long  as  they  cannot  be  disentangled, 
English  influence  suffers  obvious  disadvantage  through 
the  imperfect  communion  of  thought.  It  is  undesir- 
able that  there  should  not  be  among  the  English 
public  a  sensible  fraction  which  can  completely 
decipher  the  documents  of  International  transactions, 
but  it  is  more  than  undesirable  that  the  incapacity 
should  extend  to  our  statesmen  and  diplomatists. 
Whether  Roman  law  be  useful  or  not  to  English  law- 
yers, it  is  a  downright  absurdity  that,  on  the  theatre 
of  International  affairs,  England  should  appear  by 
delegates  unequipped  with  the  species  of  knowledge 
which  furnishes  the  medium  of  intellectual  commu- 
nication to  the  other  performers  on  the  scene. 

The  practitioner  of  English  law  who  would  care 


DIFFUSION   OF    ROMAX   LAW.  355 

little  for  the  reconunendations  of  this  study  which 
have  as  yet  been  mentioned,  must  nevertheless  feel 
that  he  has  an  interest  in  Roman  jurisprudence  in 
respect  of  the  relation  in  which  it  stands  to  all,  or 
nearly  all,  foreign  law.  It  may  be  confidently  as- 
serted, that  if  the  English  lawyer  only  attached  him- 
self to  the  study  of  Roman  law  long  enough  to  master 
the  technical  phraseology  and  to  realize  the  leading 
legal  conceptions  of  the  Corpus  Juris,  he  would 
approach  those  questions  of  foreign  law  to  which  our 
Courts  have  repeatedly  to  address  themselves  with 
an  advantage  which  no  mere  professional  acumen 
acquired  by  the  exclusive  practice  of  our  own  juris- 
prudence could  ever  confer  on  him.  The  steady 
multiplication  of  legal  systems,  borrowing  the  entire 
phraseology,  adopting  the  principles,  and  appropriat- 
ing the  greater  part  of  the  rules  of  Roman  juris- 
prudence, is  one  of  the  most  singular  phenomena  of 
our  day,  and  far  more  worthy  of  attention  than  the 
most  showy  manifestations  of  social  progress.  This 
gradual  approach  of  Continental  Europe  to  a  unifor- 
mity of  municipal  law  dates  unquestionably  from  the 
first  French  Revolution.  Although  Europe,  as  is  well 
known,  formerly  comprised  a  number  of  countries  and 
provinces  which  governed  themselves  b}''  the  written 
Roman  law,  interpolated  with  feudal  observances,  there 
does  not  seem  to  be  any  evidence  that  the  institutions 
of  these  localities  enjoyed  any  vogue  or  favour  beyond 


856  THE   FRENCH   CODES. 

their  boundaries.  Indeed,  in  the  earlier  part  cf  the 
last  century  there  may  be  traced  among  the  educated 
men  of  the  Continent  something  of  a  feeling  in  favour 
of  English  law — a  feeling  proceeding,  it  is  to  be 
feared,  rather  from  the  general  enthusiasm  for 
English  political  institutions  which  was  then  preva- 
lent, than  founded  on  any  very  accurate  acquaintance 
with  the  rules  of  our  jurisprudence.  Certainly,  as 
respects  France  in  particular,  there  were  no  visible 
symptoms  of  any  general  preference  for  the  institu- 
tions of  the  pays  de  droit  ecrit  as  opposed  to  the  pro- 
vinces in  which  customary  law  was  observed.  But 
then  came  the  French  Revolution,  and  brought  with 
it  the  necessity  of  preparing  a  general  code  for 
France  one  and  indivisible.  Little  is  known  of  the 
special  training  through  which  the  true  authors  of 
this  work  had  passed  ;  but  in  the  form  which  it  ulti- 
mately assumed,  when  published  as  the  Code 
Napoleon,  it  may  be  described,  without  great  inac- 
curacy, as  a  compendium  of  the  rules  of  Roman  law  ^ 

•  It  is  not  intended  to  imply  that  tlie  framers  of  the  Code  Civil 
simply  adopted  the  Civil  law  of  the  pays  de  ch'oit  ecrit,  and  rejected 
that  of  the  pays  de  droit  coutumier.  Many  texts  of  the  French 
Codes  which  seem  to  be  literally  transcribed  from  the  Corpus  Juris 
come  from  the  droit  coutumier,  into  which  a  large  element  of  Roman 
law  had  gradually  worked  its  way.  Those  parts  of  the  Code  Civil 
in  which  the  Customs  have  been  followed  in  points  in  which  they 
differed  from  the  Eoman  law  are  chiefly  the  chapters  which  have 
reference  to  Personal  Relations ;  but  in  this  department  there  had 
been,  as  might  be  expected,  considerable  deviations  from  Roman 
jurisprudence  even  in  the  pays  de  droit  4crit. 


FRENCH   CODES    ON    DISSOLUTION   OF    EMPIRE.        367 

then  practised  in  France,   cleared  of  all  feudal  ad- 
mixture— such   rules,   however,    being    in   all  cases 
taken  with  the  extensions  given  to  them,  and  the 
interpretations  put  upon  them  by  one  or  two  emi- 
nent  French  jurists,   and  particularly   by   Pothier. 
The  French  conquests  planted  this  body  of  laws  over 
the   whole   extent  of  the  French  Empire,   and  the 
kingdoms  immediately  dependent  on  it;    and  it  is 
incontestable  that  it  took   root  with  extraordinary 
quickness  and  tenacity.     The  highest  tribute  to  the 
French  Codes  is  their  great  and  lasting  popularity 
with  the  people,  the  lay -public,  of  the  countries  into 
which    they    have   been   introduced.       How    much 
weight   ought  to  be  attached  to  this   symptom  our 
own  experience  should  teach  us,  which  surely  shows 
us  how  thoroughly  indifferent  in  general  is  the  mass 
of  the  public  to  the  particular  rules  of  civil  life  by 
which  it  may  be  governed,  and  how  extremely  super- 
ficial are   even   the   most   energetic   movements   in 
favour  of  the  amendment  of  the  law.     At  the  fall  of 
the   Bonapartist  Empire  in  1815,   most  of  the  re- 
stored Governments  had  the  strongest  desire  to  expel 
the   intrusive  jurisprudence  which  had  substituted 
itself  for  the  ancient  customs  of  the  land.     It  was 
found,  however,  that   the   people   prized  it  as   the 
most  precious  of  possessions  :  the  attempt  to  subvert 
it  was  persevered  in  in  very  few  instances,  fjid  in  most 
of  them  the  French  Codes  were  restored  after  a  brief 


558  AUSTRIAN   AND    OTHER   CODES. 

abeyance.  And  not  only  has  the  observance  oi 
these  laws  been  confirmed  in  almost  all  the  countries 
which  ever  enjoyed  them,  but  they  have  made  their 
way  into  numerous  other  communities,  and  occasion- 
ally in  the  teeth  of  the  most  formidable  political 
obstacles.  So  steady,  indeed,  and  so  resistless  has 
been  the  diffusion  of  this  Romanized  jurisprudence, 
either  in  its  original  or  in  a  slightly  modified  form, 
that  the  civil  law  of  the  whole  Continent  is  clearly 
destined  to  be  absorbed  and  lost  in  it.  It  is,  too,  we 
should  add,  a  very  vulgar  error  to  suppose  that  the 
civil  part  of  the  Codes  has  only  been  found  suited  to 
a  society  so  peculiarly  constituted  as  that  of  France. 
With  alterations  and  additions,  mostly  directed  to 
the  enlargement  of  the  testamentary  power  on  one 
side,  and  to  the  conservation  of  entails  and  primoge- 
niture on  the  other,  they  have  been  admitted  into 
counti*ies  whose  social  condition  is  as  unlike  that  of 
France  as  is  possible  to  conceive.  A  written  juris- 
prudence, identical  through  five-sixths  of  its  tenor, 
regulates  at  the  present  moment  a  community  mon- 
archical, and  in  some  parts  deeply  feudalized,  like 
Austria,^  and  a  community  dependent  for  its  exist- 
ence on  commerce,  like  Holland — a  society  so  near 

*  The  Code  of  Austria  was  commenced  under  Joseph  IL,  but 
not  completed  till  1810.  The  portions  of  it  which  were  framed  aftei 
the  appearance  of  the  French  Codes  follow  them  in  everything  except 
fiome  minor  peculiarities  of  expression. 


ENGLISH   LAW   IN   AMERICA.  358 

the  pinnacle  of  civilization  as  France,  and  one  as 
primitive  and  as  little  cultivated  as  that  of  Sicily  and 
Southern  Italy. 

Undeniable  and  most  remarkable  as  is  this  fact  of 
the  diffusion  within  half  a  century  over  nearly  all 
Europe  of  a  jurisprudence  founded  on  the  Civil  Law 
of  Rome,  there  are  some  minds,  no  doubt,  to  which 
it  will  lose  much  of  its  significance  when  they  be- 
think themselves  that  in  the  ground  thus  gradually 
occupied,  the  French  Codes  have  not  had  to  compete 
directly  with  the  Law  of  England.  We  can  readily 
anticipate  the  observation,  that  against  these  con- 
quests of  a  Romanized  jurisprudence  in  Europe  may 
be  set  off  the  appropriation  of  quite  as  large  a  field 
by  the  principles  of  our  own  system  in  America. 
There,  it  may  be  said,  the  English  uncodified  juris- 
prudence, with  its  conflict  of  Law  and  Equity,  and 
every  other  characteristic  anomaly,  is  steadily 
gathering  within  its  influence  popuhxtions  already 
counted  by  millions,  and  already  distinguished  by  as 
high  a  social  activity  as  the  most  progressive  com- 
munities of  Continental  Europe.  It  is  not  the  object 
of  this  Essay  to  disparage  the  English  law,  and  stiil 
less  its  suitableness  to  Anglo-Saxon  societies  ;  but  it 
is  only  honest  to  say  that  the  comparison  just  sug- 
gested does  not  quite  give  at  present  the  results 
expected  from  it.  During  many  years  after  the 
severance  of  the  United   States   from   the  mother« 


860  CODE    OF   LOUISIANA. 

country,  the  new  States  successively  formed  out  of  the 
unoccupied  territory  of  the  Federation  did  all  oi 
them  assume  as  the  standard  of  decision  for  the  Courts 
in  cases  not  provided  for  by  legislation,  either  the 
Common  law  of  England,  or  the  Common  law 
as  transformed  by  early  New  England  statutes 
into  something  closely  resembling  the  Custom 
of  London.  But  this  adherence  to  a  single  model 
ceased  about  1825.  The  State  of  Louisiana,  for  a 
considerable  period  after  it  had  passed  under  the 
dominion  of  the  United  States,  observed  a  set  of  civil 
rules  strangely  compounded  of  English  case-law, 
French  code-law,  and  Spanish  usages.  The  consoli- 
dation of  this  mass  of  incongruous  jurisprudence 
was  determined  upon,  and  after  more  than  one  un- 
successful experiment,  it  was  confided  to  the  first  legal 
genius  of  modern  times — Mr.  Livingiston.  Almost 
unassisted,^  he  produced  the  Code  of  Louisiana,  of  all 
republications  of  Roman  law  the  one  which  appears 
to  us  the  clearest,  the  fidlest,  the  most  philosophical, 
and  the  best  adapted  to  the  exigencies  of  modern 
society.  Now  it  is  this  code,  and  not  the  Common 
law  of  England,  which  the  newest  American  States 
are  taking  for  the  substratum  of  their  laws.  The 
diffusion  of  the    Code   of  Louisiana   does,   in   fact, 

'  Mr.  Livingston,  as  is  well  known,  was  the  sole  author  of  the 
Criminal  Code.  In  the  composition  of  the  Civil  Code,  he  was  asso- 
ciated with  MM.  Derbigny  and  Morolislet;  but  the  most  important 
chapters,  including  all  those  on  Contract,  are  entirely  from  his  pen. 


aO^lA^   LAW   A   LIXGUA   FRANCA.  3G1 

exactly  keep  step  with  the  extension  of  the  territory 
of  the  Federation.  And,  moreover,  it  is  producing 
sensible  effects  on  the  older  American  States.  But 
for  its  success  and  popularity,  we  should  not  probably 
have  had  the  advantage  of  watching  the  greatest  ex- 
periment which  has  ever  been  tried  on  English 
jurisprudence — the  still -proceeding  codification  and 
consolidation  of  the  entire  law  of  New  York. 

The  Roman  law  is,  therefore,  fast  becoming  the 
lingua  franca  of  universal  jurisprudence  j  and  even 
now  its  study,  imperfectly  as  the  present  state  of 
English  feeling  will  permit  it  to  be  prosecuted,  may 
nevertheless  be  fairly  expected  to  familiarize  the 
English  lawyer  with  the  technicalities  which  pervade, 
and  the  jural  conceptions  which  underlie,  the  legal 
systems  of  nearly  all  Europe  and  of  a  great  part  of 
America.  If  these  propositions  are  true,  it  seems 
scarcely  necessary  to  carry  further  the  advocacy  of 
the  improvements  in  legal  education  which  are  here 
contended  for.  The  idle  labour  which  the  most 
dexterous  practitioner  is  compelled  to  bestow  on  the 
simplest  questions  of  foreign  law  is  the  measure  of 
the  usefulness  of  the  knowledge  which  would  be  con- 
ferred by  an  Institutional  course  of  Roman  juris- 
prudence. 

In  the  minds  of  many  Englishmen,  there  is  a 
decided,  though  vague,  association  'between  the  study 


862  CODIFICATION. 

of  Roman  law  and  the  vehemently  controverted  topic 
of  Codification,  The  fact  that  the  two  subjects  are 
thus  associated,  renders  it  desirable  that  we  should 
endeavour  to  show  what,  in  our  view,  is  their  real 
bearing  upon  each  other;  but,  before  the  attempt  is 
made,  it  is  worth  while  remarking  that  this  term 
'  Codification,'  modern  as  it  is,  has  already  undergone 
that  degradation  of  meaning  which  seems  in  ambush 
for  all  English  words  that  lie  on  the  border-land 
between  legal  and  popular  phraseology,  and  has 
contracted  an  important  ambiguity.  Both  those 
who  affirm  and  those  who  deny  the  expediency 
of  codifying  the  English  law,  visibly  speak  of  Codi- 
fication in  two  different  senses.  In  the  first  place, 
they  employ  the  word  as  synonymous  with  the  con- 
version of  Unwritten  into  Written  Law.  The  differ- 
ence between  this  meaning  and  another  which  will  be 
noticed  presently,  may  best  be  illustrated  by  pointing 
to  the  two  Codes  of  Rome — the  one  which  began  and 
the  one  which  terminated  her  jurisprudence — the 
Twelve  Tables  and  the  Corpus  Juris  of  Justinian. 
At  the  dawn  of  legal  history,  the  knowledge  of  the 
Customs  or  Observances  of  each  community  waa 
universally  lodged  with  a  privileged  order;  with  an 
Aristocracy,  a  Caste,  or  a  Sacerdotal  Corporation. 
So  long  as  the  law  was  confined  to  their  breasts,  it 
was  true  Unwritten  Law  ;  and  it  became  written  Law 
wlien  the  juristical  oligarchy  was  compelled  to  part 


T^O   JIEANIXGS    OF   CODIFICATION.  333 

with  its  exclusive  information,  and  when  the  rules  ol 
civil  life,  put  into  written  characters  and  exposed  to 
public  view,  became  accessible  to  the  entire  society. 
The  Twelve  Tables,  the  Laws  of  Draco,  and  to  some 
extent  of  Solon,  and  the  earliest  Hindoo  Code,  were 
therefore  products  of  Codification  in  this  first  sense 
of  the  word.  There  is  no  doubt,  too,  that  the  English 
Judg'es  and  the  Parliaments  of  the  Pays  Coutumiers 
in  France  long  claimed,  and  were  long  considered,  to 
be  depositaries  of  a  body  of  law  which  was  not  en- 
tirely revealed  to  the  lay-public.  But  this  theory, 
whether  it  had  or  had  not  a  foundation  in  fact, 
gradually  crumbled  away,  and  at  length  we  find  it 
clearly,  though  not  always  willingly,  acknowledged 
that  the  Legislature  has  the  exclusive  privilege  of 
declaring  to  be  law  that  which  is  not  written  as  law 
in  previous  positive  enactments,  or  in  books  and  re- 
cords of  authority.  Thenceforward,  the  old  ideas  on 
the  subject  of  the  judicial  office  were  replaced  by  the 
assumption,  on  which  the  whole  administration  of 
justice  in  England  is  still  founded,  that  all  the  law  is 
declared,  but  that  the  Judges  have  alone  the  power 
of  indicating  with  absolute  certainty  in  what  part  of 
it  particular  rules  are  to  be  found.  For  at  least  two 
centuries  before  the  Revolution,  the  French  Droit 
Coutumier^  though  still  conventionally  opposed  to  the 
Droit  Ecrit^  or  Roman  Law,  had  itself  become  written 
b.w  ;  nobody  pretended  to  look  for  it  elsewhere  than 


864  SECOND    SENSE    OP   CODIFICATION. 

in  Royal  Ordinances,  or  in  the  Livres  de  Coutumes^ 
or  in  the  tomes  of  tlie  Feudists.  So,  again,  it  is  not 
denied  by  anybody  in  England,  and  certainly  not  by 
the  English  Judges,  that  every  possible  proposition 
of  English  jurisprudence  may  be  found,  in  some  form 
or  other,  in  some  chapter  of  the  Statutes  at  Large^  or 
in  some  page  of  one  of  the  eight  hundred  volumes 
of  our  Law  Reports.  English  Law  is  therefore 
Written  Law  ;  and  it  is  also  Codified  Law,  if  the 
conversion  of  unwritten  into  written  law  is  Codifi- 
cation. Codification  is,  however,  plainly  used  in 
another  sense,  flowing  from  the  association  of  the  word 
with  the  great  experiment  of  Justinian.  When 
Justinian  ascended  the  throne,  the  Roman  law  had 
been  written  for  centuries,  and  the  undertaking  of 
the  Emperor  and  his  advisers  was  to  give  orderly 
arrangement  to  this  written  law — to  deliver  it  from 
obscurity,  uncertainty,  and  inconsistency — to  clear  it 
of  irrelevancies  and  unnecessary  repetitions — to  re- 
duce its  bulk,  to  popularize  its  study,  and  to  facilitate 
its  application.  The  attempt,  successful  or  not,  gives 
a  second  meaning  to  Codification.  The  word  signifies 
the  conversion  of  Written  into  well  Written  law  ;  and 
in  this  sense  English  jurisprudence  is  certainly  not 
Codified,  for,  whatever  be  its  intrinsic  merits,  it  is 
loosely  and  lengthily  written,  and  its  Corpus  Juris  is 
a  Law  Library.  Yet  surely  Codification,  taken  in 
this  second  acceptation,  indicates  one  of  the  highest  and 


DIFFICULTIES    OF   CODIFICi.TIOJ;r.  365 

VTorthiest  objects  of  human  endeavour.  It  is  always 
difficult  to  know  what  requires  to  be  proved  in 
England  ;  but  it  appears  tolerably  obvious,  that  if 
law  be  written  at  all  it  is  desirable  that  it  should  be 
clearly,  tersely,  and  accurately  written.  The  true 
question  is,  not  whether  Codification  be  itself  a  good 
thing,  but  whether  there  is  power  enough  in  the 
country  to  overcome  the  difficulties  which  impede  its 
accomplishment.  Can  any  body  of  men  be  collected 
which  shall  join  accurate  knowledge  of  the  existing 
law  to  a  complete  command  of  legislative  expression 
and  an  intimate  famiiiariry  with  the  principles  of 
legal  classification  ?  If  not,  the  argument  for  a 
Codification  of  EngHsh  law  is  greatly  weakened.  Few 
will  deny  that  badly-expressed  law,  thoroughly 
understood  and  dexterously  manipulated,  is  better 
than  badly-expressed  law  of  which  the  knowledge  is 
still  to  seek.  And,  indeed,  when  it  does  not  seem  yet 
conceded  that  we  can  produce  a  good  statute,  it  ap- 
pears premature  to  ask  for  a  Code. 

It  cannot  be  pretended  that  knowledge  of  the 
Koman  law  would  by  itself  enable  Englishmen  to  cope 
with  the  difficulties  of  Codification.  Yet  it  is  certain 
that  the  study  of  Roman  law,  as  ancillary  to  the 
systematic  cultivation  of  legal  and  legislative  ex- 
pression, would  arm  the  lawyer  with  new  capacities 
for  the  task;  and  we  may  almost  assert,  having 
regard  to  the  small  success  of  Bentham's  experiments 


306  MEANINGS    OF   CODIFICATION. 

on  English  legal  phraseology,  that  Codification  will 
never  become  practicable  in  England  without  some 
help  from  that  wonderful  terminology  which  is,  as  it 
were,  the  Short-hand  of  jurisprudence.  Still  larger 
would  be  the  sphere  of  Roman  law  if  all  obstacles 
were  overcome,  and  a  Code  of  English  law  were 
actually  prepared.  It  is  not  uncommonly  urged  by 
the  antagonists  of  Codification,  that  Codified  law  has 
some  inherent  tendency  to  produce  glosses,  or,  as  they 
sometimes  put  it,  that  Codes  always  become  overlaid 
with  commentaries  and  interpretative  cases.  If  the 
learned  persons  who  entertain  this  opinion,  instead  of 
ariruino:  from  the  half- understood  statistics  of  foreio;n 
systems,  would  look  to  their  own  experience,  they 
would  see  that  their  jjosition  is  either  trivial  or  para- 
doxical. If  b}''  Codified  law  they  merely  mean  ivritten 
law,  they  need  not  go  far  from  home  to  establish 
their  point;  for  the  English  law,  which  is  as  much 
written  law  as  the  Code  of  Louisiana,  throws  off  in  each 
year  about  fifteen  hundred  authoritative  judgments, 
and  about  fifty  volumes  of  unauthoritative  commen- 
tary. On  the  other  hand,  if  Codified  law  is  used  by 
these  critics  to  signify  law  as  clearly  and  harmoniously 
expressed  as  human  skill  can  make  it,  their  assertion 
draws  with  it  the  monstrous  consequence  that  a  well- 
drawn  Statute  produces  more  glosses  than  one  which 
is  ill  drawn,  so  that  the  Act  for  the  Abolition  of 
Fines  and  Recoveries  ought  to  have  produced  more 


JUDICIAL    LEGISLATIOX.  367 

cases  than  the  Thellusson  Act.  The  truth  which  hea 
at  the  bottom  of  these  cavils  is  probably  this — that  no 
attainable  skill  applied  to  a  Code  can  wholly  prevent 
the  extension  of  law  by  judicial  interpretation.  Ben- 
thain  thought  otherwise,  and  it  is  well  known  that  in 
several  Codes  the  appeal  to  mere  adjudicated  cases  is 
expressly  interdicted.  But  the  process  by  which  the 
application  of  legal  rules  to  actual  occurrences  enlarges 
and  modifies  the  system  to  which  they  belong,  is  so 
subtle  and  so  insensible,  that  it  proceeds  even  against 
the  will  of  the  interpreters  of  the  law  ;  and,  indeed, 
the  assumption  made  directly  or  indirectly  in  every 
Code,  that  the  principles  which  it  supplies  are  equal 
to  the  solution  of  every  possible  question,  appears  to 
carry  necessarily  with  it  some  power  of  creating  what 
Bentham  w^ould  have  called  judge-made  law.  There 
are  means,  however,  by  which  this  judicial  legislation 
may  be  reduced  to  a  minimum.  A  Code,  like  a  Statute, 
narrows  the  office  of  the  judicial  expositor  in  propor- 
tion to  the  skill  shown  in  penning  it.  Some  use, 
though  very  sparing  ^  use,  is  made  of  cases  in  the  in- 
terpretation of  French  law;  but  the  Code  of  Louisiana, 
which  was  framed  by  persons  who  had  many  advan- 
tages over  the  authors  of  the  Code  Napoleon,  is  said 
to  have  been  very  little  modified  by  cases,  though  the 
practitioners  of  an  American  State  have,  as  might  be 

'  The  exact  extent  to  which  cases  are  employed  wiTl  be  eaiuly 
seen  on  opening  the  Commentary  of  M.  Troplong. 


868  TACIT   CODIFICATION. 

expected,  no  prejudice  against  them.  Yet  the  surest 
preservative  of  all  against  over-reliance  on  adjudged 
precedents,  and  the  best  mitigation  of  imperfections 
in  a  Code  of  English  Law,  would  be  something  of  the 
peculiar  tact  which  is  extraordinarily  developed  in 
the  Roman  jurisconsults.  We  have  already  spoken  ot 
the  instruction  given  by  the  Civil  law  in  the  interpre- 
tation and  manipulation  of  express  written  rules.  It 
may  even  be  affirmed  that  the  study  of  Roman  juris- 
prudence is  itself  an  education  in  those  particular 
exercises. 

Apart,  however,  from  these  litigated  questions, 
attention  may  be  called  to  the  tacit  Codification 
(the  word  being  always  taken  in  its  second  sense) 
which  is  constantly  proceeding  in  our  law.  Every 
time  the  result  of  a  number  of  cases  is  expressed  in  a 
formula,  and  that  formula  becomes  so  stamped  with 
authority — whether  the  authority  of  individual  learn- 
ing or  of  long-continued  usage — that  the  Courts 
grow  disinclined  to  allow  its  terms  to  be  revised  on  a 
mere  appeal  to  the  precedents  upon  which  it  origin- 
ally rested,  then,  under  such  circumstances,  there  is, 
'pro  tanto,  a  Codification.  Many  hundred,  indeed 
many  thousand,  dicta  of  Judges — not  a  few  proposi- 
tions elicited  by  writers  of  approved  treatises,  such 
as  the  well-known  books  on  Vendors  and  Purchasers 
and  on  Foicers — are  only  distinguishable  in  name 
from  the  texts  of  a  Code  ;  and,  much  as  the  current 


INTERPRETATIOX   OP   WEITTEX   LAW.  369 

language  of  the  legal  profes&ion  may  conceal  it,  an 
acute  observer  may  discover  that  the  process  of,  as 
it  were,  stereotyping  certain  legal  rules  is  at  this 
moment  proceeding  with  unusual  rapidity,  and  is, 
indeed,  one  of  the  chief  agencies  which  save  us  from 
being  altogether  overwhehned  by  the  enormous 
growth  of  our  case-law.  In  the  manipulation  of  texts 
thus  arrived  at,  there  is  room  for  those  instrumen- 
talities which  the  Roman  law  has  been  described  as 
supplying — although  doubtless  the  chance,  which  is 
never  quite  wanting,  of  the  rule  being  modified  or 
changed  on  a  review  of  the  precedents,  is  likely  to 
prevent  the  free  use  of  canons  of  interpretation  which 
assume  the  fixity  of  the  proposition  to  be  interpreted. 
No  such  risk  of  modification  impends,  however,  over 
the  Statute-law  ;  and  surely  the  state  of  this  depart- 
ment of  our  jurisprudence,  coupled  with  the  facts  of 
its  vastness  and  its  ever-increasiug  importance,  make 
the  reform  of  our  legal  education  a  matter  of  the  most 
pressing  and  immediate  urgency.  It  is  now  almost  a 
commonplace  among  us,  that  English  lawyers,  though 
matchless  in  their  familiar  field  of  case-law,  are  quite 
unequal  to  grapple  with  express  enactments ;  but  the 
profession  speaks  of  the  imperfection  with  levity  and 
without  shame,  because  the  fault  is  supposed  to  lie 
mth  the  Legislature.  Unquestionably  our  legisla- 
tion does  occasionally  fall  short  of  the  highest  stan- 
dard  in   respect  of  lucidit}^  terseness,  and  orderly 

B  B 


870  PARLIAMENTARY   PROCEDURE. 

arrangement ;  but  even  though  the  admission  be  tra^ 
in  all  its  tenor,  it  appears  merely  to  shift  the  reproach 
a  single  step,  for  nobody  doubts  that  our  statutes  are 
framed  by  lawyers,  and  are,  in  the  long  run,  the  fruit 
of  whatever  capacity  for  orderly  disposition  and  what- 
ever power  of  comprehensive  expression  are  to  be 
found  among  the  Bar.  The  Statute-book  is  no  credit 
to  the  Legislature  ;  but  it  is,  at  the  same  time,  the 
opprobrium,  jurisperitoimm.  Not,  indeed,  that  its 
condition  is  attributable  to  individual  framers  of 
statutes,  who  frequently  work  marvels,  considering 
the  circumstances  in  which  they  are  placed.  It  may, 
with  much  greater  justice,  be  explained  by  the  special 
mental  habits  of  the  English  Bar  in  general ;  and  it 
is,  in  fact,  one  of  the  many  consequences  of  forgetting 
the  great  truth,  that  to  secure  the  consistency  and 
cohesion  of  a  body  of  law,  a  uniform  system  of  legal 
education  is  as  necessary  as  a  common  understanding 
among  the  Judges,  or  a  free  interchange  of  precedents 
among  the  Courts. 

Before,  however,  we  try  to  establish  the  proposi- 
tion just  hazarded,  it  may  be  as  well  to  notice  the 
argument  which  attributes  all  the  imperfections  of 
the  Statute-law  to  the  procedure  of  Parliament.  It 
is  urged  that  insufficient  care  is  bestowed  on  the  se- 
lection of  draftsmen,  so  that  the  results  of  the  highest 
skill  and  labour  are  discredited  by  juxtaposition  with 
the  work  of  inferior  hands.      The  grand  source  of 


COUNCIL    OF   STATE.  271 

miscMef  is,  however,  affirmed  to  be  the  practice  of 
introducing  Amendments  into  Bills  during  their 
passage  through  the  Houses  ;  so  that  the  unity  of 
language  and  conception  which  pervaded  the  original 
production  is  completely  broken  through,  and  the 
measure  is  interpolated  with  clauses  penned  in  io-no- 
rance  of  the  particular  technical  objects  which  the 
first  draftsman  had  in  view.  For  remedy  of  this  pal- 
pable evil,  many  schemes  have  been  proposed  ;  and 
a  good  authority  has  suggested  the  creation  of  aboard 
of  official  draftsmen,  which  should  revise  the  draft  of 
every  proposed  measure  before  it  is  submitted  to 
Parliament,  and  to  which  every  Bill,  with  its  amend- 
ments, should,  at  some  stage  of  the  subsequent  pro- 
ceedings, be  referred,  in  order  that  the  changes 
accepted  by  the  House  should  be  harmonized  with 
the  general  texture  of  the  enactment.  The  advan- 
tages of  such  an  institution,  for  all  technical  purposes, 
are  not  to  be  questioned  ;  but  the  plan  seems  one 
little  likely  to  be  adopted,  as  being  signally  at 
conflict  with  the  current  sentiments  of  Englishmen. 
It  interferes  in  appearance  with  the  Hberty  of  Parlia- 
ment, and  there  is  no  doubt  that,  in  reality,  it  is  a 
much  more  formidable  institution  than  its  projectors 
imagine.  In  order  that  its  objects  should  be  com- 
pletely realized,  it  would  be  probably  U'^cessary  to  arm 
this  board  with  all  the  powers  which,  even  under  the 
French  Constitution  of  1848,  were  confided  to  the 

B  B  2 


872  LEGISLATIVE   EXPRESSION. 

Council  of  State  ;  and  the  admission  must  in  honesty 
be  made,  that  the  Council  of  State  has  always  prac- 
tically fettered  the  activity  of  French  legislatures, 
and  has  uniformly  gained  in  dignity  and  power  at  the 
expense  of  constitutional  freedom.  Far  be  it  from 
us  to  deny  that  by  a  carefully-elaborated  mechanism 
all  these  risks  might  be  avoided  ;  but  an  improve- 
ment likely  at  best  to  be  opposed  by  such  strong 
prepossessions,  might  well  be  postponed,  if  a  simpler 
remedy  can  be  discovered. 

The  truth  is,  that  both  the  difficulty  of  drafting 
Statutes  and  the  confusion  caused  by  amending  them 
are  infinitely  greater  than  they  need  be,  and  infinitely 
greater  than  they  would  be  if  English  practitioners 
were  subjected  to  any  system  of  legal  education  in 
which  proper  attention  was  paid  to  the  dialect  of 
legislation  and  law.  This  branch  of  study  may  be 
described,  though  the  comparison  cannot  from  the 
nature  of  the  case  be  taken  strictly,  as  having  for 
its  object  to  bring  all  language,  for  legal  purposes,  to 
the  condition  of  algebraic  symbols,  and  therefore  to 
produce  uniformity  of  method  in  its  employment, 
and  identity  of  inference  in  its  interpretation.  In 
practice,  of  course,  nothing  more  than  an  approxima- 
tion to  these  results  could  be  obtained;  but  it  is 
likely  that  a  general  educational  machinery,  even 
though  comparatively  inefiicient,  would  add  materially 
to  the  extent  and  importance  of  that  portion  of  legis 


RESULTS    OF   AilENDING   BILLS.  37S 

lative  phraseology  which  is  common  stock.  As 
matters  stand,  each  draftsman  of  statutes  is  absolutely 
separated  from  his  colleagues.  Each  works  on  his  own 
basis,  in  some  cases  with  consummate  skill  and  know- 
ledge, in  occasional  instances  with  very  little  either  of 
the  one  or  the  other.  Each  forms  his  own  legislative 
dialect,  and  even  frames  the  dictionary  by  which  the 
public  and  the  Courts  are  to  interpret  it.  The 
greatest  possible  varieties  of  style,  visible  even  to  a 
layman,  do,  in  fact,  show  themselves  in  the  later 
volumes  of  the  Statute-book ;  and  in  the  drafting  of 
some  of  the  most  important  Statutes  passed  quite  re- 
cently, it  is  plain  that  two  distinct  models  have  been 
followed,  one  of  them  involving  the  use  of  extremely 
technical,  the  other  of  excessively  popular  language. 
The  effect  of  Amendments  on  Bills  which  are  drawn 
under  such  circumstances  is  quite  disastrous;  and  if 
the  confusion  which  they  create  is  not  immediately 
detected  by  a  non-legal  eye,  it  is  only  from  inadequate 
appreciation  of  the  value  which  at  once  attaches  to  the 
separate  words  and  phrases  of  legislative  enactments 
when  subjected  to  judicial  scrutiny.  The  interpola- 
tions are  not  merely  like  touches  by  an  inferior  artist 
in  the  painting  of  a  master.  They  are  not  simply 
blemishes  which  offend  taste,  and  which  require  a  con- 
noisseur to  discover  them.  They  are  far  more  like  a 
new  language,  a  new  character,  and  a  new  vein  of 
thought,    suddenly    occurring    in    a    document    or 


874  ENGLISH   METHODS    OF    INTERPRETATION. 

inscription,  which  has  to  be  deciphered  exclusively  bj 
the  means  of  information  which  it  furnishes  itself  to 
the  interpreter. 

The  mischiefs  arising  from  the  Amendment  of 
Bills  are  much  aggravated  by  the  peculiar  canons  of 
interpretation  which  the  insulation  of  draftsmen  forces 
upon  our  tribunals.  The  English  law  was  always 
distinguished  from  other  systems,  and  particularly 
from  the  Roman  law,  by  the  scantiness  of  its  apparatus 
of  rules  for  construing  Statute-law  as  a  whole.  In 
proportion,  however,  to  the  growing  variety  of  style 
and  arrangement  in  Acts  of  Parliament,  the  available - 
ness  of  the  existing  rules  has  progressively  diminished, 
and  timidity  in  applying  them  has  insensibly  in- 
creased, until  at  length  Bench,  Bar,  and  Commen- 
tators have  pretty  well  acquiesced  in  the  practice  of 
looking  exclusively  to  the  particular  Statute  which 
may  be  under  consideration  for  the  means  of  inter- 
preting it — of  refusing,  as  it  is  sometimes  phrased,  to 
travel  out  of  the  four  corners  of  the  Act.  Of  all  the 
anomalies  which  disfigure  or  adorn  the  Law  of  Eng- 
land, ihis  is  not  the  one  which  would  least  astonish 
the  foreign  jurist.  English  lawyers,  however,  have 
lost  all  sense  of  its  unnaturalness,  and  it  really 
seems  inevitable,  so  long  as  the  different  chapters  of 
the  Statute-book  are  connected  by  no  relation  except 
of  subject.  Unfortunately,  it  reacts  upon  the  drafts- 
man, and  adds  very  materially  to  his  difficulties  and 


CHAEACTERISTICS    OF   ENGLISH    LEGISLATION.       37-! 

rssponsibilities.  It  forces  him  not  only  to  set  out  all 
the  bearings  of  the  legal  innovation  which  he  means 
to  introduce,  but  to  disclose  the  very  elements  of  the 
legislative  dialect  in  which  he  intends  to  declare  them. 
It  imposes  on  him  a  verbose  prolixity  which  seriously 
increases  his  liability  to  misconstruction,  and  involves 
him  in  a  labyrinthine  complexity  of  detail  which 
renders  his  work  peculiarly  susceptible  of  injury  by 
amendments  and  alterations.  The  vastness  of  their 
contents  has  been  repeatedly  pointed  out  as  the  cha- 
racteristic vice  of  English  Statutes,  No  doubt,  this 
is  partially  caused  by  the  marked  tendency  of  our 
legislation  to  deal  not  so  much  with  principles  as  with 
applications  of  principles,  the  authors  of  enactments 
endeavouring  to  anticipate  all  the  possible  results  of 
a  fundamental  rule,  with  the  view  of  limiting  or  en- 
larging them,  but  scarcely  ever  risking  the  attempt 
to  modify  and  shape  anew  the  fundamental  rule 
itself.  But  the  great  cause  is  certainly  that  which 
has  been  indicated,  in  the  want  of  a  common  fund  of 
technical  legislative  expression,  and  in  the  methods 
of  judicial  construction  which  are  entailed  upon  us  by 
this  lacuna  in  our  law.  Every  English  Act  of  Par- 
liament is,  in  fact,  forced  to  carry  on  its  back  an  enor- 
mous mass  of  matter  which,  under  a  better  system, 
would  be  produced  as  it  is  wanted  from  the  permanent 
storehouse  of  jurisprudence;  and  it  is  to  this  necessity 
that  the  frequent   miscarriages   of  our    Statute-  aw 


876  THE   EPITHET   *  PRACTICAL.* 

ought  to  be  attributed,  quite  as  much  as  to  defects  Iz 
the  mechanism  of  legislaticu. 

There  are  many  persons  who  will  be  sufficiently 
attracted  to  the  study  of  Roman  Law  by  the  promise 
which  it  holds  out  of  helping  to  enrich  our  language 
with  a  new  store  of  Legal  and  Legislative  Ex- 
pression ;  of  contributing  to  clear  up  the  obscurity 
which  surrounds  the  fundamental  conceptions  of  all 
jurisprudence  ;  of  throwing  light,  by  the  illustrative 
parallels  which  it  affords,  on  many  of  the  principles 
peculiar  to  English  law  ;  and  lastly,  of  enabling  us, 
by  the  observation  of  its  own  progress,  to  learn 
something  of  the  course  of  development  which  every 
body  of  legal  rules  is  destined  to  follow.  To  such 
minds  many  of  the  remarks  offered  in  this  Essay 
have  been  less  addressed  than  to  those  who  are  likely 
to  be  affected  by  the  common  aspersion  on  these 
studies,  that  they  are  not  of  any  practical  value.  It 
is  to  be  hoped  that  future  generations  will  not  judge 
the  present  by  its  employment  of  the  word  '  practical.' 
This  solitary  term,  as  has  been  truly  enough  re- 
marked, serves  a  large  number  of  persons  as  a  substi- 
tute for  all  patient  and  steady  thought ;  and,  at  all 
events,  instead  of  meaning  that  which  is  useful,  as 
opposed  to  that  which  is  useless,  it  constantly  signi- 
fies that  of  which  the  uee  is  grossly  and  immediately 
palpable,  as  distinguished  from  that  of  which  the 
usefulness  can  only  be  discerned  after  attention  and 


DIFFICULTIES   OF   KOMAN   LAW.  377 

exertion,  and  must  at  first  be  chiefly  believed,  on  tbe 
faith  of  authority.  Now,  certainly,  if  by  mastering 
the  elements  of  Roman  Law  we  gain  the  key  to 
International  Law,  public  and  private,  and  to  the 
Civil  Law  of  nearly  all  Europe,  and  of  a  large  part  of 
America — if,  further,  we  are  put  in  a  fair  way  to  ac- 
quire a  dexterity  in  interpreting  express  rules  which 
no  other  exercise  can  confer — the  uses  of  this  study 
must  be  allowed  not  to  lie  very  remote  from  the  pur- 
suits of  even  the  most  servile  practitioner;  but  still  the 
vulgar  notions  concerning  practical  usefulness  make  it 
necessary  to  give  the  warning  that  the  aids  furnished 
by  Roman  law  are  not,  for  the  most  part,  instantly 
available.  It  is  not  difficult  to  perceive  that  the 
comparative  credit  into  which  Roman  jurisprudence 
is  rising  is  constantly  tempting  persons  to  appeal  to  its 
resources  who  are  not  properly  prepared  to  employ 
them.  Except  where  the  English  lawyer  is  gifted 
with  extraordinary  tact,  it  is  exceedingly  dangerous 
for  him  to  open  the  Corpus  Juris,  and  endeavour,  by 
the  aid  of  the  knowledge  of  Latinity  common  in  this 
country,  to  pick  out  a  case  on  all-fours  with  his  own, 
or  a  rule  germane  to  the  point  before  him.  The 
Roman  law  is  a  system  of  rules  rigorously  adjusted 
to  principles,  and  of  cases  illustrating  those  rules  ; 
and  unless  the  practitioner  can  guide  himself  by 
the  clue  of  principle,  he  will  almost  infallibly  imagine 
pax'allels    where   they   have   no   existence,    and    Gf 


878  STUDY   OF   ROMAIC  LAW   IN  ENGLAND. 

certainly  miss  them  when  they  are  there.  No  one,  in 
short,  should  read  his  Digest  without  having  mastered 
his  Institutes.  When,  however,  the  fundamental  con- 
ceptions of  Roman  law  are  thoroughly  realized,  the 
rest  is  mastered  with  surprising  faciUty — with  an 
ease,  indeed,  which  makes  the  study,  to  on^:  habitu- 
ated to  the  enormous  difficulty  of  English  law, 
little  more  than  child's  play. 

Whatever  be  the  common  impressions  on  the 
point,  there  are  singular  facilities  in  England  for  the 
cultivation  of  Roman  law.  We  already  prosecute 
with  as  much  energy  as  any  community  in  the  world 
the  studies  which  lead  up  to  this  one,  and  the  studies 
to  which  this  one  ought  to  be  introductory.  Be- 
tween classical  literature  and  English  law,  the  place 
is  made  for  the  Roman  jurisprudence.  It  would 
effectually  bridge  over  that  strange  intellectual  guli 
which  separates  the  habits  of  thought  which  are 
laboriously  created  at  our  Schools  and  Universities 
from  the  habits  of  thought  which  are  necessarily 
produced  by  preparation  for  the  Bar — a  chasm 
which,  say  what  we  will,  costs  the  legal  profession 
some  of  the  finest  faculties  of  the  minds  which 
do  surmount  it,  and  the  whole  strength  of  the 
perhaps  not  inferior  intellects  which  never  succeed  in 
getting  across.  In  England,  too,  we  should  have  the 
immense  advantage  of  studying  the  pure  classical 
Roman   law,    apart   from  the   load  of   adventitious 


HISTORY    OF   ROMAN    LAW.  878 

speculation  with  which  it  has  got  entangled  during 
its  contact  with  the  successive  stages  of  modern 
thought.  Neither  custom  nor  opinion  would  oblige 
us,  as  they  oblige  the  jurists  of  many  other  countries, 
to  embarrass  ourselves  with  the  solution  of  questions 
engrafted  on  the  true  Roman  jurisprudence  by  the 
scholasticism  of  its  first  modern  doctors,  by  the 
philosophical  theories  of  its  next  expositors,  and  by 
the  pedantry  of  its  latest  interpreters.  Apart  from 
these  gratuitous  additions,  it  is  not  a  difficult  study, 
and  the  way  is  cleared  for  it.  Nothing  would  seem 
to  remain  except  to  demonstrate  its  value  ;  and  here, 
no  doubt,  is  the  difficulty.  The  unrivalled  excellence 
of  the  Roman  law  is  often  dogmatically  asserted,  and, 
for  that  very  reason  perhaps,  is  often  superciliously  dis- 
beheved;  but,  in  point  of  fact,  there  are  very  few  phe- 
nomena which  are  capable  of  so  much  elucidation,  if 
not  explanation.  The  proficiency  of  a  given  commu- 
nity in  jurisprudence  depends,  in  the  long  run,  on 
the  same  conditions  as  its  progress  in  any  other  line  of 
inquiry  ;  and  the  chief  of  these  are  the  proportion  of 
national  intellect  devoted  to  it,  and  the  length  of  time 
during  which  it  is  so  devoted.  Now,  a  combination 
of  all  the  causes,  direct  and  indirect,  which  contribute 
to  the  advancing  and  perfecting  of  a  science,  continued 
to  operate  on  the  jurisprudence  of  Rome  through 
the  entire  space  between  the  Twelve  Tables  and  the 
reform  of  Justinian, — and  that  not  irregularly  or  at 


880  PROGRESS   OF   ROMAN   LAW. 

intervals,  but  in  steadily  increasing  force  and  con> 
stantly  augmenting  number.  We  should  r  jflect  that 
the  earliest  intellectual  exercise  to  which  a  young  na* 
tion  devotes  itself  is  the  study  of  its  laws.  The  first 
step  in  mental  progress  is  to  generalize,  and  the  con- 
cerns of  everyday  life  are  the  first  to  press  for  com- 
prehension within  general  rules  and  inflexible  for- 
mulas. The  popularity  of  the  pursuit  on  which  all  the 
energies  of  the  young  commonwealth  are  bent  is,  at 
the  outset,  unbounded ;  but  it  ceases  in  time.  The 
monopoly  of  mind  by  law  is  broken  down.  The  crowd 
at  the  morning  audience  of  the  great  Roman  juriscon- 
sult lessens.  The  students  are  counted  by  hundreds 
instead  of  thousands  in  the  English  Inns  of  Court. 
Art,  Literature,  Science,  and  Politics  claim  their  share 
of  the  national  intellect  ;  and  the  practice  of  juris- 
prudence is  confined  within  the  circle  of  a  profession 
never,  indeed,  limited  or  insignificant,  but  attracted 
as  much  by  the  rewards  as  by  the  intrinsic  recom- 
mendations of  their  science.  This  succession  of 
changes  exhibited  itself  even  more  strikingly  at 
Rome  than  in  England.  To  the  close  of  the  Repub- 
lic, the  law  was  the  sole  field  for  all  ability  except 
the  special  talent  of  a  capacity  for  generalship.  But 
a  new  stage  of  intellectual  progress  began  with  the 
Augustan  age,  as  it  did  with  our  own  Elizabethan 
era.  We  all  know  what  were  its  achievements  in 
poetry  and  prose  ;  but  there  are  sone  indications,  it 


PROGRESS   OF   ROilAIf   LAW.  381 

should  be  remarked,  that,  besides  its  efflorescence  in 
ornamental  literature,  it  was  on  the  eve  of  throwing 

o 

out  new  aptitudes  for  conquest  in  physical  science. 
Here,  however,  is  the  point  at  which  the  history  of 
mind  in  the  Roman  State  ceases  to  be  parallel  to  the 
routes  which  mental  progress  has  since  then  pursued. 
The  brief  span  of  Roman  literature,  strictly  so  called, 
was  suddenly  closed  under  a  variety  of  influences, 
w^hich,  though  they  may  partially  be  traced,  it  would 
be  improper  in  this  place  to  analyse.  Ancient  intel- 
lect was  forcibly  thrust  back  into  its  old  courses,  and 
law  again  became  no  less  exclusively  the  proper  sphere 
for  talent  than  it  had  been  in  the  days  when  the 
Romans  despised  philosophy  and  poetry  as  the  toys  of 
a  childish  race.  Of  what  nature  were  the  external 
inducements  which,  during  the  Imperial  period,  tended 
to  draw  a  man  of  inherent  capacity  to  the  pursuits  of 
the  jurisconsult,  may  best  be  understood  by  consider- 
ing the  option  which  was  practically  before  him  in  his 
choice  of  a  profession.  He  might  become  a  teacher 
of  rhetoric,  a  commander  of  frontisr-posts,  or  a  pro- 
fessional writer  of  panegyrics.  The  only  other  walk 
of  active  life  which  was  open  to  him  was  the  practice 
of  the  law.  Through  that  lay  the  approach  to  wealth, 
to  fame,  to  office,  to  the  council-chamber  of  the 
monarch — it  may  be  to  the  very  throne  itself. 

The  stoppage  of  literary  production  at  Rome  is 
sometimes  spoken  of  as  if  it  argued  a  decay  of  Roman 


882  ROMAN   INTELLECT   AND    ROMAN   LAW. 

intellect,  and  therfore  a  decline  in  the  mentai  energies 
of  the  civilized  world.  But  there  seems  to  be  no 
ground  for  such  an  assumption.  Many  reasons  may 
be  assigned  for  the  phenomenon  in  question;  but 
none  of  them  can  be  said  to  imply  any  degeneration 
of  those  faculties  which,  but  for  intervening  impedi- 
ments, might  have  been  absorbed  by  art,  science,  or 
literature.  All  modern  knowledge  and  all  modern 
invention  are  founded  on  some  disjointed  fragments 
of  Greek  philosophy,  but  the  Romans  of  the  Empire 
had  the  whole  edifice  of  that  philosophy  at  their 
disposal.  The  triumphs  of  modern  intellect  have 
been  accomplished  in  spite  of  the  barriers  of  separate 
nationalities;  but  the  Roman  Empire  soon  became 
homogeneous,  and  Rome,  the  centre  towards  which 
the  flower  of  the  provincial  youth  drew  together, 
became  the  depository  of  all  the  available  talent  in 
the  world.  On  these  considerations,  it  would  seem  that 
progress  of  some  kind  or  other,  at  least  equal  to  our 
own,  might  have  been  expected  a  priori  ;  and  indeed, 
whatever  we  may  think  of  results^  it  seems  both  pre- 
sumptuous and  contrary  to  analogy,  to  affirm  that 
capacities  were  smaller  in  the  reign  of  the  Antonines 
than  in  the  reign  of  James  the  Eirst.  And  if  this  be  so, 
we  know  the  labour  on  which  these  capacities  ex- 
hausted themselves.  The  English  law  has  always 
enjoyed  even  more  than  its  fair  share  of  ihe  disposable 
ability  of  the  country;  but  what  would  it  have  been 
if,  besides  Coke,  Somers,   Hardwicke,  and  Mansfield, 


ROMAN   INTELLECT   AND    ROMAN    LAW.  383 

it  had  counted  Locke,  Newton,  and  the  whole  strength 
of  Bacon — nay,  even  Milton  and  Dryden — among  its 
chief  luminaries?  It  would  be  idle,  of  course,  to 
affect  to  find  the  exact  counterparts  of  these  great 
names  among  the  masters  of  Roman  jurisprudence; 
but  those  who  have  penetrated  deepest  into  the 
spirit  of  the  Ulpians,  Papinians,  and  Pauluses  are 
ready  to  assert  that  in  the  productions  of  the  Roman 
lawyers  they  discover  all  the  grand  qualities  which 
we  identify  with  one  or  another  in  the  list  of  distin- 
guished Englishmen.  They  see  the  same  force  and 
elegance  of  expression,  the  same  rectitude  of  moral 
view,  the  same  immunity  from  prejudice,  the  same 
sound  and  masculine  sense,  the  same  sensibility  to 
analogies,  the  same  keen  observation,  the  same  nice 
analysis  of  generals,  the  same  vast  sweep  of  compre- 
hension over  particulars.  If  this  be  delusion,  it  can 
only  be  exposed  by  going  step  by  step  over  the  ground 
which  these  writers  have  traversed.  All  the  antece- 
dent probabilities  are  in  favour  of  their  assertion, 
however  audacious  it  may  appear.  Unless  we  are  pre- 
pared to  believe  that  for  five  or  six  centuries  the 
world's  collective  intellect  was  smitten  with  a  para- 
lysis which  never  visited  it  before  or  since,  we  are 
driven  to  admit  that  the  Roman  jurisprudence  ma^ 
be  all  which  its  least  cautious  encomiasts  have  vec 
tured  to  pronounce  it,  and  that  the  language  of  con- 
ventional panegyric  may  even  fall  short  of  the 
unvarnished  truth. 


APPENDICES= 


cc 


387 


APPENDIX  I.i 

MINUTE  KECOEDED   ON  OCTOBER   1,    1868. 

The  first  conclusion  which  I  draw  (from  a  Paper  '  showing 
in  each  case  the  authority  at  whose  suggestion  the  Acts 
of  the  Governor-General  in  Council,  from  No.  I.  of  1865, 
to  No.  XXXVIII.  of  1867,  were  passed')  is,  that  next 
to  no  legislation  originates  with  the  Supreme  Government 
of  India.  The  only  exceptions  to  complete  inaction  in 
this  respect  which  are  worth  mentioning,  occur  in  the  case 
of  Taxing  Acts — though,  as  there  is  often  much  communi- 
cation with  the  Provincial  Governments  on  the  subject  of 
these  Acts,  the  exception  is  only  partial — and  in  that  of  a 
few  Acts  adapting  portions  of  English  Statute-law  to  India. 
Former  Indian  Legislatures  introduced  into  India  certain 
modern  English  Statutes,  limiting  their  operation  to  '  cases 
governed  by  English  law.'  The  most  recent  English 
amendments  of  the  Statutes  were,  however,  not  followed 
in  this  country  until  they  were  embodied  in  Indian  Acts 
by  my  predecessor,  Mr.  Ritchie,  and  myself,  in  accordance 
with  the  general  wish  of  the  Bench  and  Bar  of  the  High 
Courts.  Examples  of  this  sort  of  legislation  are  Acts 
XXVII.  and  XXVIII.  of  1866,  which  only  apply  to  'cases 
governed  by  English  law.' 

The  second  and  much  the  most  important  inference 
which  the  Paper  appears  to  me  to  suggest  is,  that  the 
great  bulk  of  the  legislation  of  the   Supreme  Council  is 

>  Vide  p.  70. 
0  0  2 


888  APPENDIX   I. 

attributable  to  its  being  the  Local  Legislature  of  many 
Indian  Provinces.  At  the  present  moment,  the  Council 
of  the  Governor-General  for  making  Laws  and  Regulations 
is  the  sole  Local  Legislature  for  the  North-Western  Pro- 
vinces, for  the  Punjab,  for  Oudh,  for  the  Central  Provinces, 
for  British  Burmah,  for  the  petty  Province  of  Coorg,  and 
for  many  small  patches  of  territory  which  are  scattered 
among  the  Native  States.  Moreover,  it  necessarily  divides 
the  legislation  of  Bengal  Proper,  Madras,  and  Bombay 
with  the  local  Councils  of  those  Provinces.  For,  under 
the  provisions  of  the  High  Court's  Act  of  1861,  it  is  only 
the  Supreme  Legislature  which  can  alter  or  abridge  the 
jurisdiction  of  the  High  Courts,  and  as  this  jurisdiction  is 
very  wide  and  far-reaching,  the  effect  is  to  throw  on  the 
Governor-General's  Council  no  small  amount  of  legislation 
which  would  naturally  fall  on  the  Local  Legislatures. 
Occasionally,  too,  the  convenience  of  having  but  one  law 
for  two  Provinces,  of  which  one  has  a  Council  and  the 
other  has  none,  induces  the  Supreme  Government  to  legis- 
late for  both,  generally  at  the  request  of  both  their 
Governments. 

Now  these  Provinces  for  which  the  Supreme  Council  is 
the  joint  or  sole  Legislature  exhibit  very  wide  diversities. 
Some  of  these  differences  are  owing  to  distinctions  of  race, 
others  to  differences  of  land-law,  others  to  the  unequal 
spread  of  education.  Not  only  are  the  original  diversities 
between  the  various  populations  of  India  believed  nowa- 
days to  be  much  greater  than  they  were  once  thought  to 
be,  but  it  may  be  questioned  whether,  for  the  present  at 
all  events,  they  are  not  rather  increasing  than  diminishing 
under  the  influence  of  British  Government.  That  in- 
fluence has  no  doubt  thrown  all  India  more  or  less  into 
a  state  of  ferment  and  progress,  but  the  rate  cf  progress 
is  very  unequal  and  irregular.  It  is  growing  more  and 
more  difficult  to  bring  the  population  of  two  or  more  Pro- 


APPENDIX   I.  386 

viaces  under  any  one  law  which  goes  closely  home  to  theii 
daily  life  and  habits. 

Not  only,  then,  are  we  the  Local  Legislature  of  a  great 
many  Provinces,  in  the  sense  of  being  the  only  authority 
which  can  legislate  for  them  on  all  or  certain  subjects,  but 
the  condition  of  India  is  more  and  more  forcing  us  to  act 
as  if  we  were  a  Local  Legislature,  of  which  the  powers  do 
not  extend  beyond  the  Pro\dnce  for  which  we  are  legis- 
lating. The  real  proof,  therefore,  of  our  over-legislation 
would  consist,  not  in  showing  that  we  pass  between  thirty 
and  forty  Acts  in  every  year,  but  in  demonstrating  that 
we  apply  too  many  new  laws  to  each  or  to  some  one  of  the 
Provinces  subject  to  us.  Now,  I  will  take  the  most  im- 
portant of  the  territories  for  which  we  are  exclusively  the 
Legislature — the  North-Western  Provinces;  and  I  will 
take  the  year  in  which,  judging  from  the  Paper,  there  has 
been  most  North-Western  legislation — the  year  1867. 
The  amount  does  not  seem  to  have  been  very  great  or 
serious.  1  find  that  in  1867,  if  Taxing  Acts  be  excluded, 
the  North- West  was  affected  in  common  with  all  or  other 
parts  of  India  by  an  Act  repressive  of  Public  Gambhng 
(No.  III.);  by  an  Act  for  the  Registration  of  Printing 
Presses  (No.  XXY.);  and  by  five  Acts  (IV.,  VIL,  VIII., 
X.,  and  XXXIII.)  having  the  most  insignificant  tech- 
nical objects.  I  find  that  it  was  exclusively  affected  by 
an  Act  (I.)  empowering  its  Government  to  levy  certain 
tolls  on  the  Ganges ;  by  an  Act  (XXII.)  for  the  Regula- 
tion of  Native  Inns;  by  an  Act  (XVIII.)  giving  a  legal 
constitution  to  the  Courts  already  established  in  a  single 
district,  and  by  an  Act  (XXVIII.)  confirming  the  sen- 
tences of  certain  petty  Criminal  Courts  already  existing. 
I  find  further  that,  in  the  same  year,  1867,  the  English 
Parliament  passed  85  Public  General  Acts  applicable  to 
England  and  Wales,  of  which  one  was  the  Representation 
of  the  People  Act.  The  number  of  Local  and  Personal 
Acts  passed  in  the  same  year  was  188.     All  this  legislation^ 


SIX)  APPENDIX    I. 

too,  came,  it  must  be  remembered,  on  the  back  of  n 
vast  mass  of  Statute-law,  compared  with  which  all  the 
written  law  of  all  India  is  the  merest  trifle.  Now  the 
population  of  England  and  Wales  is  rather  over  20  millions, 
that  of  the  North-Western  Provinces  is  supposed  to  be  above 
30  millions.  No  trustworthy  comparison  can  be  instituted 
between  the  two  countries ;  but,  regard  being  had  to  their 
condition  thirty  years  ago,  it  may  be  doubted  whether,  in 
respect  of  opinions,  ideas,  habits,  and  wants,  there  has  not 
been  more  change  during  thirty  years  in  the  North-West 
than  in  England  and  Wales. 

A  third  inference  which  the  Paper  suggests  is,  that  our 
legislation  scarcely  ever  interferes,  even  in  the  minutest 
degree,  with  Private  Rights,  whether  derived  from  usage 
or  from  express  law.  It  has  been  said  by  a  high  authority 
that  the  Indian  Legislature  should  confine  itself  to  the 
amendment  of  Adjective  Law,  leaving  Substantive  Law 
to  the  Indian  Law  Commissioners.  It  is  meant  no  doubt 
that  the  Indian  Legislature  should  only  occupy  itself, 
■proprio  motu,  with  improvements  in  police,  in  administra- 
tion, in  the  mechanism  and  procedure  of  courts  of  justice. 
This  proposition  appears  to  me  a  very  reasonable  one  in 
the  main,  but  it  is  nearly  an  exact  description  of  the 
character  of  our  legislation.  We  do  not  meddle  with 
Private  Rights ;  we  only  create  Official  Duties.  No 
doubt  Act  X.  of  1865  and  Act  XV.  of  1866  do  consider- 
ably modify  Private  Rights,  but  the  first  is  a  chapter  and 
the  last  a  section  of  the  Civil  Code  framed  in  England  by 
the  Law  Commissioners. 

The  Paper  does  not  of  course  express  the  urgency  with 
which  the  measures  which  it  names  are  pressed  on  us  by 
their  originators — the  Local  Governments.  My  colleagues 
are,  I  believe,  aware  that  the  earnestness  with  which  these 
Governments  demand  legislation,  as  absolutely  necessary 
for  the  discharge  of  their  duties  to  the  people,  is  some- 
times   very  remarkable.      I  am   very  f:u*  indeed  from  be- 


APPENDIX  I.  391 

lieving  tliat,  as  they  are  now  constituted,  they  think  the 
Supreme  Council  precipitate  in  legislation.  I  could  at 
this  moment  name  half  a  dozen  instances  in  which  the 
present  Lieutenant-Governors  of  Bengal  and  the  North- 
West  deem  the  hesitation  of  the  Government  of  India  in 
recommending  particular  enactments  to  the  Legislature 
unnecessary  and  unjustifiable. 

While  it  does  not  seem  to  me  open  to  doubt  that  the 
Government  of  India  is  entirely  free  from  the  charge  of 
initiating  legislation  in  too  great  abundance,  it  may  never- 
theless be  said  that  we  ought  to  oppose  a  firmer  resist- 
ance to  the  demands  of  the  Local  Governments  and  other 
authorities  for  leo;islative  measures.  It  seems  desirable 
therefore  that  I  should  say  something  of  the  influences 
which  prompt  these  Governments,  and  which  constitute 
the  causes  of  the  increase  in  Indian  legislation.  I  must 
premise  that  I  do  not  propose  to  dwell  on  causes  of  great 
generality.  Most  people  would  admit  that,  for  good  or 
for  evil,  the  country  is  changing  rapidly,  though  not 
at  uniform  speed.  Opinion,  belief,  usage,  and  taste  are 
obviously  undergoing  more  or  less  modification  every- 
where. The  standard  of  good  government  before  the 
minds  of  oflScials  is  constantly  shifting,  perhaps  it  is  rising. 
These  phenomena  are  doubtless  among  the  ultimate  causes 
of  legislation ;  but,  unless  more  special  causes  are  as- 
signed, the  explanation  will  never  be  satisfactory  to  many 
minds. 

I  will  first  specify  a  cause  which  is  in  itself  of  a  merely 
formal  nature,  but  which  still  contributes  greatly  for  the 
time  to  the  necessity  for  legislation.  This  is  the  effect  of 
the  Indian  Councils'  Act  of  1861  upon  the  system  which 
existed  before  that  date  in  the  Non-Regulation  Provinces. 
It  is  well  known  that,  in  any  strict  sense  of  the  word,  the 
Executive  Government  legislated  for  those  Provinces  up  to 
1861.  The  orders,  instructions,  circulars,  and  rules  ibr 
the  guidance  of  officers  which  it  constantly  issued   were. 


882  APPENDIX   I. 

to  a  certain  extent,  essentially  of  a  legislative  charactefj 
but  then  they  Avere  scarcely  ever  in  a  legislative  form.  It 
is  not  matter  of  surprise  that  this  should  have  been  so, 
for  the  authority  prescribing  the  rule  immediately  modified 
or  explained  it,  if  it  gave  rise  to  any  inconvenience,  or  was 
found  to  be  ambiguous.  But  the  system  (of  which  the 
legality  had  long  been  doubted)  was  destroyed  by  the 
Indian  Councils'  Act.  No  Legislative  power  now  exists 
in  India  which  is  not  derived  from  this  Statute ;  but  to 
prevent  a  wholesale  cancellation  of  essentially  legislative 
rules,  the  25th  Section  gave  the  force  of  law  to  all  rules 
made  previously  for  Non-Regulation  Provinces  by  or  under 
the  authority  of  the  Government  of  India,  or  of  a  Lieute- 
nant-Governor. By  this  provision,  an  enormous  and 
most  miscellaneous  mass  of  rules,  clothed  to  a  great 
extent  in  general  and  popular  language,  was  suddenly 
established  as  law,  and  invested  with  solidity  and  un- 
changeableness  to  a  degree  which  its  authors  had  never 
contemplated.  The  difficulty  of  ascertaining  what  is  law 
and  what  is  not  in  the  foi-mer  Non-Regulation  Provinces 
is  really  incredible.  I  have,  for  instance,  been  seriously 
in  doubt  whether  a  particular  clause  of  a  Circular  in- 
tended to  prescribe  a  rule  or  to  convey  a  sarcasm.  The 
necessity  for  authoritatively  declaring  rules  of  this  kind, 
for  putting  them  into  precise  langaage,  for  amending 
them  when  their  policy  is  doubted,  or  when  they  are  tried  by 
the  severer  judicial  tests  now  applied  to  them,  they  give 
different  results  from  those  intended  by  their  authors,  is 
among  the  most  impei'ative  causes  of  legislation.  Such 
legislation  will,  however,  diminish  as  the  process  of  simjilify- 
ing  and  declaring  these  rules  goes  on,  and  must  ultimately 
come  to  a  close. 

I  now  come  to  springs  of  legislation  which  appear  to 
increase  in  activity  rather  than  otherwise.  First  among 
these  I  do  not  hesitate  to  place  the  groAving  influence  of 
courts  of  justice  and  of  legal  practitioners.     Our   Courts 


APPEKDIX   I.  39S 

are  bGComing  more  careful  of  precise  rule  both  at  the  top 
and  at  the  bottom.  The  more  careful  legal  education  of 
the  young  civilians  and  of  the  younger  Native  judges 
diffuses  the  habit  of  precision  from  below ;  the  High 
Courts,  in  the  exercise  of  their  poAvers  of  supervision,  are 
more  and  more  insisting  on  exactness  from  above. 

An  even  more  powerful  influence  is  the  immense  mul- 
tiplication of  legal  practitioners  in  the  country.  I  am 
not  now  speaking  of  European  practitioners,  though  their 
number  has  greatly  increased  of  late,  and  though  they 
penetrate  much  further  into  the  Mofussil  than  of  old. 
The  great  addition,  however,  is  to  the  numbers  and  in 
fluence  of  the  Native  Bar.  Practically  a  young  educated 
Native,  pretending  to  anything  above  a  clerkship,  adopts 
one  of  two  occupations — either  he  goes  into  the  service 
of  Government  or  he  joins  the  Native  Bar.  I  am  told, 
and  I  believe  it  to  be  true,  that  the  Bar  is  getting  to  be 
more  and  more  preferred  to  Government  service  by  the 
educated  youth  of  the  country,  both  on  the  score  of  its 
gainfulness  and  on  the  score  of  its  independence. 

Now  the  law  of  India  is  at  present,  and  probably  will 
long  continue  to  be,  in  a  state  which  furnishes  opportunity 
for  the  suggestion  of  doubts  almost  without  limit.  The 
older  written  law  of  India  (the  Regulations  and  earlier 
Acts)  is  declared  in  language  which,  judged  by  modern 
requirements,  must  be  called  po})ular.  The  authoritative 
Native  treatises  on  law  are  so  vague  that,  from  many  of 
the  dicta  embodied  by  them,  almost  any  conclusion  can 
be  drawn.  Moi'e  than  that,  there  are,  as  the  Indian  Law 
Commissioners  have  pointed  out,  vast  gaps  and  interspaces 
in  the  Substantive  Law  of  India;  there  are  subjects  on 
which  no  rules  exist ;  and  the  rules  actually  aj)plicd  by  the 
Courts  are  taken,  a  good  deal  at  haphazard,  from  popular 
text-books  of  English  law.      Such  a  condition  of  thinj^s  is  a 

CD  O 

mine  of  legal  difficulty.  The  Courts  are  getting  ever  more 
rigid  in  theu'  demand  of  legal  warrant  for  the  actions  of  all 


KM  APPENDIX   I. 

men,  officials  included.  The  lawyers  who  practise  before 
them  are  getting  more  and  more  astute,  and  render  the 
difficulty  of  pointing  to  such  legal  warrant  day  by  day 
greater.  And  unquestionably  the  Natives  of  India,  living 
in  the  constant  presence  of  courts  and  lawyers,  are  growing 
every  day  less  disposed  to  regard  an  Act  or  Order  which 
they  dislike  as  an  unkindly  dispensation  of  Providence, 
which  must  be  submitted  to  with  all  the  patience  at  their 
command.  If  British  rule  is  doing  nothing  else,  it  is 
steadily  communicating  to  the  Native  the  consciousness  of 
positive  rights,  not  dependent  on  opinion  or  usage,  but 
capable  of  being  actively  enforced. 

It  is  not,  I  think,  difficult  to  see  how  this  state  of  the 
law  and  this  condition  of  the  Courts  and  Bar  render  it 
necessary  for  the  Local  Governments,  as  being  responsible 
for  the  efficiency  of  their  administration,  to  press  for  legisla- 
tion. The  nature  of  the  necessity  can  best  be  judged  by 
considering  what  would  be  the  consequences  if  there  were 
no  legislation,  or  not  enough.  A  vast  variety  of  points 
would  be  unsettled  until  the  highest  tribunals  had  the 
opportunity  of  deciding  them,  and  the  government  of  the 
country  would  be  to  a  great  extent  handed  over  to  the 
High  Courts,  or  to  other  Courts  of  Appeal.  No  court  of 
justice,  however,  can  pay  other  than  incidental  regard  to 
considerations  of  expediency,  and  the  result  would  be  that 
the  country  would  be  governed  on  principles  which  have  no 
necessary  relation  to  policy  or  statesmanship.  It  is  the  jus- 
tification of  legislation  that  it  settles  difficulties  as  soon  as 
they  arise,  and  settles  them  upon  considerations  which  a 
court  of  justice  is  obliged  to  leave  out  of  sight. 

The  consequences  of  leaving  India  to  be  governed  by 
the  Courts  would,  in  my  judgment,  be  most  disastrous. 
The  bolder  sort  of  officials  would,  I  think,  go  on  without 
regard  to  legal  rule,  until  something  like  the  deadlock 
would  be  reached  with  which  we  are  about  to  deal  in  the 
Punjab.     But  the  great  majority  of  administrative  officials. 


APPENDIX   I.  895 

whether  weaker  or  less  reckless,  would  observe  a  cautioB 
and  hesitation  for  which  the  doubtful  state  of  the  law  could 
always  be  pleaded.  There  would,  in  fact,  be  a  pai'alysis  of 
administration  throughout  the  country. 

The  fact  established  by  the  Paper,  that  the  duties 
created  by  Indian  legisliition  are  almost  entirely  official 
duties,  explains  the  dislike  of  legislation  which  occasion- 
ally shows  itself  here  and  there  in  India.  I  must  confess 
that  I  have  always  believed  the  feeling,  so  far  as  it  exists, 
to  be  official,  and  to  correspond  very  closely  to  the  re- 
pugnance which  most  lawyers  feel  to  having  the  most 
disorderly  branch  of  case-law  superseded  by  the  simplest 
and  best  drawn  of  statutes.  The  truth  is,  that  nobody 
likes  innovations  on  knoAvledge  which  he  has  once  ac- 
quired with  difficulty.  If  there  was  one  legislative  change 
which  seemed  at  the  time  to  be  more  rebelled  against  than 
another,  it  was  the  supersession  of  the  former  Civil  Pro- 
cedure of  the  Punjab  by  the  Code  of  Civil  Procedure. 
The  Civil  Pi-ocedure  of  the  Punjab  had  originally  been 
exceedingly  simple,  and  far  better  suited  to  the  country 
than  the  then  existing  procedure  of  the  Regulation  Pro- 
vinces. But  two  years  ago  it  had  become  so  overlaid  by 
explanations  and  modifications  convei^ed  in  Circular 
orders,  that  I  do  not  hesitate  to  pronounce  it  as  uncertain 
and  difficult  a  body  of  rules  as  I  ever  attempted  to  study. 
I  can  speak  Avith  confidence  on  the  point ;  for  I  came  to 
India  strange  both  to  the  Code  of  Civil  Procedure  and  to 
the  Civil  Procedure  of  the  Punjab,  and,  while  the  first  has 
always  seemed  to  me  nearly  the  simplest  and  clearest 
system  of  the  kind  in  the  world,  I  must  own  I  never  felt 
sure  in  any  case  what  was  the  Punjab  rule.  The  intro- 
duction of  the  Code  was,  in  fact,  the  merest  act  of  justice 
to  the  young  generation  of  Punjab  officials,  yet  the  older 
men  spoke  of  the  measure  as  if  some  ultra-technical  body  of 
law  were  being  forced  on  a  service  accustomed  to  courts  of 
primitive  simplicity. 


896  APPENDIX  I. 

It  must,  on  the  other  hand,  be  admitted  that,  in 
creating  nevr  official  duties  by  legislation,  we  probably  in 
some  degree  fetter  official  discretion.  There  is  no  doubt 
a  decay  of  discretionary  administration  throughout  India  ; 
and,  indeed,  it  may  be  said  that  in  one  sense  there  is  now 
not  more,  but  much  less,  legislation  in  the  country  than 
formerly;  for,  strictly  speaking,  legislation  takes  place 
every  time  a  new  rule  is  set  to  the  people,  and  it  may  be 
taken  for  granted  that  in  earlier  days  Collectors  and  Com- 
missioners changed  their  rules  far  oftener  than  does  the 
Legislature  at  present.  The  truth  is,  discretionary  govern- 
ment is  inconsistent  with  the  existence  of  regular  courts 
and  trained  lawyers,  and,  since  these  must  be  tolerated, 
the  proper  course  seems  to  me  not  to  indulge  in  vague 
condemnation  of  legislation,  but  to  discover  expedients  by 
which  its  tendency  to  hamper  discretion  may  be  mini- 
mised. One  of  these  may  be  found  in  the  skilful  drafting 
of  our  laws — in  confining  them  as  much  as  possible  to 
the  statement  of  principles  and  of  well-considered  general 
propositions,  and  in  encumbering  them  as  little  as  possible 
with  detail.  Another  may  be  pointed  out  in  the  extension 
of  the  wholesale  practice  of  conferring  by  our  Acts  on 
Local  Governments  or  other  authorities  the  power  of  making 
rules  consistent  with  the  Act — a  power  in  the  exercise  of 
which  they  will  be  assisted  by  the  Legislative  Department 
under  a  recent  order  of  His  Excellency.  Lastly,  but 
principally,  we  may  hope  to  mitigate  the  inconveniences  of 
legislation  by  the  simplification  of  our  legislative  machinery 
as  applied  to  those  less  advanced  parts  of  the  country  where 
a  large  discretion  must  inevitably  be  vested  in  the  adminis- 
trator. The  power  of  easily  altering  rules  Avhen  they  chafe, 
and  of  easily  indemnifying  officials  when  they  transgress 
rules  in  good  faith,  is  urgently  needed  by  us  in  respect  of 
the  wilder  territory  of  India. 

While  I  admit  that  the  abridgment  of  discretion  by 
written  laws  is  to  some  extent  an  evil — though,  under  the 


APPEKDIX   I.  89? 

actual  circumstances  of  India,  an  inevitable  evil—  t  do  not 
admit  the  proposition  which  is  sometimes  advanced,  that 
the  Natives  of  India  dislike  the  abridgment  of  official  dis- 
cretion. This  assertion  seems  to  me  not  only  unsupported 
by  any  evidence,  but  to  be  contrary  to  all  the  probabilities. 
It  may  be  allowed  that  in  some  cases  discretionary  govern- 
ment is  absolutely  necessary ;  but  why  should  a  people, 
which  measures  religious  zeal  and  personal  rank  and  respect- 
ability by  rigid  adherence  to  usage  and  custom,  have  a 
fancy  for  rapid  changes  in  the  actions  of  its  governors,  and 
prefer  a  regimen  of  discretion  sometimes  coming  close  upon 
caprice  to  a  regimen  of  law?  I  do  not  profess  to  know 
the  Natives  of  this  country  as  well  as  others,  but  if  they 
are  to  be  judged  by  their  writings,  they  have  no  such  pre- 
ference. The  educated  youth  of  India  certainly  affect  a 
dislike  of  many  things  which  they  do  not  care  about,  and 
pretend  to  many  tastes  which  they  do  not  really  share  ;  but 
the  repugnance  which  they  invariably  profess  for  discre- 
tionary government  has  always  seemed  to  me  genuinely 
hearty  and  sincere. 


396 


APPENDIX  II.i 

G-  L.  V.  Maurer,  Einleitung  zur  Geschichte  der  Mark-,  Hof-,  Dorf- 
und  Stadt-Verfassung  und  der  ofFentlichen  Gewalt.     Munchen. 

G.  L.  V.  Maui'tr,  Geschichte  der  Dorfverfassurig  in  Deutschland 
Erlangen. 

G.  L.  V.  Maurer,  Geschiclite  der  Frohnhbfe,  der  Bauernhofe  und  del 
Hofverfassung  in  Deutschland.     Erlangen. 

G.  L.  V.  Maurer,  Geschichte  der  Markenverfassung  in  Deutschland. 
Erlangen. 

G.  L.  V.  Maurer,  Geschichte  der  Stadteverfassung  in  Deutschland. 
Erlangen. 

E.  Nasse,  Ueber  die  mittelalterliche  Feldgemeinschaft  und  die 
Einhegungen  des  sechszehnten  Jahrhunderts  in  England. 
Bonn. 

G.  Landau,  Die  Territorien  in  Bezug  auf  ihre  Bildung  und  ihre 
Entwickelung.     Hambxirg. 

G.  Landau.     Das  Salgut.     Kassel. 

Ch.  Lette,  Die  Vertheilung  des  Grundeigenthums  in  Zusammenhang 
mit  der  Geschichte  der  Gesetzgebung  und  den  Volkszustauden. 
Berlin. 

N.  Kindlinger,  Geschichte  der  deutschen  Hbrigkeit,  insbesondere 
der  sogenannten  Leibeigenschaft.     Berlin. 

W.  Gessner,  Geschichtliche  Entwickelung  der  gutsherr lichen  und 
bauerlichen  Verhaltnisse  Deutschlands,  oder  practische  Ge- 
schichte der  deutschen  Hbrigkeit.     Berlin. 

Von  Haxthausen,  Ueber  die  Agrarverfassung  in  Norddeutschland. 
Berlin. 

*  Recent  German  Works  bearing  on  the  subject  of  the  Lectures 
on  Village-Communities. 


NOTE  A.  > 

•  The  Religioi  of  an  Indian  Province  '  {Fortnightly  Re^ 
view,  Feb.  I,  1872);  'Our  Religious  Policy  in  India' 
{Fortnightly  Review,  April  1,  1872);  '  The  Religious  Situ 
ation  in  India'  {Fortnightly  Revieio,  Aug.  1,  1872); 
'  Witchcraft  and  Non-Christian  Religions '  {Fortnightly 
Review,  April  1,  1873);  'Islam  in  India'  {Theological 
Review,  K^yW  1872);  '  Missionary  Religions '  {Fortnightly 
Revieio,  July  1,  1874). 

I  take  the  following  passages  from  the  '  Berar  Gazetteer,' 
edited  by  Mr.  Lyall : — 

The  cultus  of  the  elder  or  classic  Hindu  Pantheon 
is  only  a  portion  of  the  popular  religion  of  this  country. 
Here  in  India,  more  than  in  any  other  part  of  the  world, 
do  men  worship  most  what  they  understand  least.  Not 
only  do  they  adore  all  strange  phenomena  and  incom- 
p.nhensible  forces — being  driven  by  incessant  awe  of  the 
invisible  powers  to  propitiate  every  unusual  shape  or  strik- 
ing natural  object — but  their  pantheistic  piety  leads  them 
to  invest  with  a  mysterious  potentiality  the  animals  which 
are  most  useful  to  man,  and  even  the  implements  of  a  pro- 
fitable trade.  The  husbandman  adores  his  cow  and  Ivis 
plough,  the  merchant  pays  devotion  to  his  account-book,  the 
writer  to  his  inkstand.  The  people  have  set  up  tutelary 
deities  without  number,  who  watch  over  the  interests  of 
s  '!  arate  classes  and  callings,  and  who  are  served  by  queer 
rites  peculiar  to  their  shrines.  Then  there  is  an  infinite 
army  of  demigods,  martyrs,  and  saints,  of  which  the  last- 
named  division  is  being  continually  recruited  by  the  death, 
in  full  odour  of  sanctity,  of  hermits,  ascetics,  and  even  men 

'  Mr.  Lyall's  publications. 


400  NOTE  A. 

wlio  have  been  noted  for  private  virtues  in  a  worldly  career. 
And  perhaps  the  most  curious  section  of  these  canonized 
Buints  contains  those  who  have  caught  the  reverent  fancy  of 
the  people  by  peculiar  qualities,  by  personal  deformity,  by 
mere  outlandish  strangeness ;  or  who  have  created  a  deep 
impression  by  some  great  misfortune  of  their  life  or  by  the 
circumstances  of  their  death.  All  such  striking  peculiari- 
ties and  accidents  seem  to  be  regarded  as  manifestations  of 
the  ever-active  divine  energy,  and  are  honoured  accordingly. 
Thus  it  is  not  easy  to  describe  in  a  few  pages  the  creeds  and 
forms  of  worship  which  prevail  even  in  one  small  province 
of  India,  although  in  this  imperfect  sketch  nothing  is  men- 
tioned but  what  is  actually  practised  within  Berar.  This  is 
one  of  those  provinces  in  which  the  population  is  tinged 
throughout  by  the  strong  sediment  of  aboriginal  races  that 

have  been  absorbed  into  the  lowest  castes  at  bottom 

Therefore  it  may  be  expected  that  many  obscure  primeval 
deities  owned  by  the  aboriginal  liturgies,  and  many  uncouth 
rustic  divinities  set  up  by  the  shepherds  or  herdsmen  amid 
the  melancholy  woods,  will  have  found  entry  into  the  Berar 
pantheon.  Nevertheless,  we  have  here,  on  the  whole,  a 
fair  average  sample  of  Hinduism,  as  it  exists  at  this  time 
throughout  the  greater  part  of  India  ;  for  we  know  that  the 
religion  varies  in  different  parts  of  this  vast  country  with 
endless  diversity  of  detail.  Vishnu  and  Shiva,  with  their 
more  famous  incarnations,  are  of  course  recognised  and  uni- 
versally honoured  by  all  in  Berar.  The  great  holidays  and 
feasts  of  the  religious  calendar  kept  by  Western  India  are 
duly  observed  ;  and  the  forms  and  ceremonies  prescribed 
by  Brahmanical  ordinance  are  generally  the  same  as  through- 
out Maharashtra.     The  followers  of   Shiva  are  much  the 

most  numerous,  especially  among  the  Brahmans 

Berar  is  liberally  provided  with  canonized  saints,  who 
are  in  a  dim  way  supposed  to  act  as  intercessors  between 
mortals  and  the  unseen  powers,  or  at  any  rate  to  possess 
some  mysterious  influence  for  good  and  evil,  which  can  be 


NOTE   A.  401 

propitiated  bj  sacrifice  and  offering.  Pilgrimages  are  made 
to  the  tombs  of  these  saints,  for  it  must  be  noted  that  a  man 
is  always  buried  (not  burnt)  who  has  devoted  himself  en- 
tirely to  religious  practices,  or  whom  the  gods  have  marked 
for  their  own  by  some  curious  and  wonderful  visitation. 
When  an  ascetic,  or  a  man  -widely  renowned  for  virtue,  has 
acquired  the  name  of  a  sddhu,  or  saint,  he  is  often  consulted 
much  during  his  lifetime,  and  a  few  lucky  prescriptions  or 
prophecies  gain  him  a  reputation  for  miracle-working.  To 
such  an  one  do  all  the  people  round  give  head,  from  the 
least  to  the  greatest,  saying,  as  of  Simon  Magus,  '  This 
man  is  the  great  power  of  God ; '  he  is  a  visible  manifesta- 
tion of  the  divine  energy  which  his  virtue  and  self-denial 
have  absorbed.  The  large  fairs  at  Wadnera  (Elichpur 
district),  Akot,  Nagar  Tas,  and  other  places,  took  their 
origin  from  the  annual  concourse  at  the  shrines  of  these 
sddhus.  At  Akot  the  saint  is  still  living ;  at  Wadnera  he 
died  nearly  a  century  ago,  and  his  descendants  live  on  the 
pious  offerings  ;  at  Jalgaon  a  crazy  vagrant  was  canonized 
two  or  three  years  back  on  grounds  which  strict  people 
consider  insufficient.  There  is  no  doubt  that  the  Hindu 
religion  requires  a  pope,  or  acknowledged  orthodox  head,  to 
control  its  wonderful  elasticity  and  receptivity,  to  keep  up  the 
standard  of  deities  and  saints,  to  keep  down  their  number, 
and  generally  to  prevent  superstition  from  running  wild  into 
a  tangled  jungle  of  polytheism.  At  present  public  opinion 
consecrates  whom  it  likes,  and  the  Brahmans  are  perfectly 
tolerant    of   all   intruders,  though  service  at   these  shrines 

may  be  done  by  any  caste 

The  leading  saints  of  Berar  disdain  any  romantic  origin. 
They  have  wrested  from  the  reluctant  gods,  by  sheer  piety 
and  relentless  austerity,  a  portion  of  the  divine  thaumaturgic 
power,  and  it  exhales  after  their  death  from  the  places  where 
their  bodies  were  laid.  Donations  and  thank-offerings  uour 
in ;  endowments  of  land  and  cash  used  to  be  made  before 
Eno-lish    rule   drew    a   broad    line    between    relitji^n    and 

D    D 


402  NOTE   A. 

revenue  ;  a  handsome  shrine  is  built  up ;  a  yearly  festival  ii 
established ;  and  the  pious  descendants  of  the  saint  usually 
instal  themselves  as  hereditary  stewards  of  the  mysteries 
and  the  temporalities.  After  this  manner  have  the  sepul- 
chres of  Sri  A  yan  Nath  Mahdrdj  and  Hanumant  Rdo 
Sadhu  become  rich  and  famous  in  the  country  round  Umark- 
her.  It  has  been  said  that  the  Hindus  worship  indifferently 
at  Mahometan  and  Hindu  tombs,  looking  only  to  wonder- 
working sanctity  ;  in  fact,  the  holy  man  now  in  the  flesh  at 
Akot  has  only  taken  over  the  business,  as  it  were,  from  a 
Mahometan  fakir,  whose  disciple  he  was  during  life ;  and, 
now  that  the  fakir  is  dead,  Naraing  B£wa  presides  over  the 

annual  veneration  of  his  slippers 

It  may  be  conjectured  that  whenever  there  has  arisen 
among  this  host  of  saints  and  hermits  a  man  who  added  to 
asceticism  and  a  spiritual  kind  of  life  that  active  intellectual 
originality  which  impels  to  the  attack  of  old  doctrines  and 
the  preaching  of  new  ones,  then  a  sect  has  been  founded, 
and  a  new  light  revealed.  And  the  men  who  have  created 
and  confirmed  the  o-reat  relii^ious  movements  in  Hind6ism 
are  not  always  left  in  the  humble  grade  of  saints  ;  they  are 
discovered  to  be  incarnations  of  the  highest  deities ;  while 
the  transmission  of  this  divinity  to  other  bodies  is  sometimes 
perpetuated,  sometimes  arrested  at  the  departure  of  him  who 
first  received  it.  No  such  great  prophet  has  been  seen  in 
Berar,  but  the  votaries  of  some  famous  Indian  dissidents 
are  numerous.  This  is  not  the  place  to  discuss  their  various 
tenets,  yet  their  denominations  may  be  mentioned. 


INDEX. 


ACQ 

ACCOUNTANT,  village,  his  im- 
portance in  India,  125 

Administrators,  Indian,  their  fear  of 
altering  native  custom,  39 

Agriculture,  conditions  of,  in  India 
as  compared  with  Northern  and 
Central  Europe,  108.  See  Village 
Communities 

Arable  Mark,  existence  of  the,  in  the 
Indian  village  community,  108. 
See  Village  Communities 

Arts,  faculty  of,  262 

Aryan  Institutions,  antiquity  of, 
211 

Austin,  John,  his  view  of  jurispru- 
dence, 4 

Austrian  codes,  their  similarity  to 
the  French  codes,  358 


BABER,  Emperor,  on  the  monotony 
of  Ufe  in  India,  207 

Benefices,  origin  and  influence  of,  on 
feudalism,  132 

Bengal,  Lower,  power  of  making  a 
will  in,  40.  Decay  of  the  village 
system  in,  104.  Lord  Comwallis's 
land  settlement  of,  105, 153.  Bad 
reputation  of  the  Zemindars  of,  as 
landlords,  163 

Benthamism,  advance  of  its  prin- 
ciples, 2'i 


err 

Blamire,  Mr.,  adopts  the  populai 
theory  on  landed  property,  84 

Brahminism,  effects  of,  on  older 
faiths,  216;  influence  of  Brahmini- 
cal  literature  on  Europe,  219 

British  government  in  India  com- 
pared with  Roman  government  in 
Judaea,  233-236 

Buckle,  Mr.,  on  the  social  condition 
of  India,  213 


CALCUTTA,  origin  of  the  citv  of, 
118 

Calcutta,  University  of,  increase  in 
the  number  of  students  in,  240. 
Want  of  liberality  in,  248.  Ad- 
vancement of  the  new  building, 
276.  The  importance  of  its  ex- 
aminations, 277.  Its  success  aa  a 
popular  institution,  278.  En- 
couragement of  cramming  in,  283 

Carrying  trade,  influence  of  the,  in 
India,  197 

Caste,  real  nature  of,  in  India,  56, 
57.  Actual  character  of,  in  India, 
219 

Casuists,  the,  philosophy  of,  338 

Cities,  European,  some  probably 
the  Township  Mark  of  Te'itonic 
villages,  118 

Cities,  Indian,  causes  of  the  growth 

d2 


404 


INDEX. 


CIV 

of  villages  into,  118.  Origin  of 
the  formation  of  Indian  capitals, 
119.   The  great  deserted  cities,  119 

Civil  courts  in  India,  34.  A})peals 
from  the  Settlement  and  Revenue 
courts  to  the,  34.  DiflFerence  be- 
tween a  High  and  a  Chief  court, 
85.  The  Supreme  courts  and 
theirjudicial  powers,  36.  Dismay 
caused  by  the  introduction  of 
English  law,  38.  Native  and 
English  laws  compared,  49 

Clan  society,  the  Celtic  form  of 
family  organisation,  156 

Codes,  production  of,  in  Louisiana, 
360.  The  study  of  Roman  law 
associated  with  codification,  362, 
Two  meanings  of  codification,  362. 
Difficulties  of  codiBcation,  366. 
Meaning  of  codified  law,  366. 
Tacit  codification,  368 

Codes,  Austrian,  their  similarity  to 
the  French  codes,  358 

Codes,  French,  elements  of  Roman 
law  in,  366.  Restoration  of,  after 
the  dissolution  of  Empire,  357 

Commercial  principles,  primitive, 
196 

Common,  commonable,  and  common 
field.s,  in  England,  85.  '  Stint  of 
common,'  89.  The  Indian  waste 
or  common  land,  120,  121.  Con- 
troversy after  1857  as  to  waste 
land  in  India,  121.  Action  of  the 
government  respecting  it,  122. 
Exotic  origin  of  the  ancient  three- 
field  English  system,  200 

Common-places,  danger  of,  255 

Contract,  not  the  source  of  law  in 
primitive  communities,  110.  De- 
struction of  the  village  system  by 
the  obligations  arising  out  of,  113 

Conveyances,  ancient,  of  land,  188 


DDF 

Cornwallis,  Lord,  his  settlement  o( 
Lower  Bengal,  105,  153 

Council,  village,  legislation  of  the, 
116,  123.  Sometimes  superseded 
by  a  Headman,  122 

Court  Baron,  authority  of  the  Lord 
of  the  Manor  in  the,  134,  139 

Court  Leet,  functions  of  the,  139, 
140 

Courts  of  Justice  established  by  the 
English  in  India,  71.  None  in 
some  of  the  semi-independent 
native  States,  71 

Cramming,  its  encouragement  in 
India,  283 

Custom,  stability  of,  in  India,  9. 
Slavery  of  Indians  to,  13.  Indian 
administrators  and  native  custom, 
39.  Attachment  of  an  Oriental  to 
his  local  custom,  39.  Varieties  of 
native  usage,  51,  52.  Preserva- 
tion of  customary  law,  55.  Agen- 
cies by  which  this  preservation 
has  been  effected,  55.  Antiquity 
of  Indian  custom,  65, 66.  Changes 
in  the  nature  of  usage,  72,  76. 
Origin  and  growth  of  custom,  109 

Customary  Manorial  Courts,  func- 
tions of  the,  139,  140 


T\ELHI,  exactions  of  the   Maho- 

-*-^     metan  Emperors  of,  179 

Devises,  Statute  of,  influence  of,  in 

throwing    small    properties    into 

the   hands   of  large   landowners, 

169,  170 

Diderot's    •'  Histoire    Philosophique 

des  Indes,'  213 
Distribution,  failure  of  primitive  till- 
ing communities  for  securing,  166 
Duff", Dr.,  his  qualities asa  missionary, 
246 


INDEX. 


4oa 


EDU 
PDUCATION,  relative  priority  of 
*-^  studies,  263.  In  the  upper 
Classes  of  India,  279.  Relation  of, 
to  morality,  281.  Art  of  teaching, 
286.  Superficial  knowledge,  287. 
Native  use  of,  288.  Present  and 
past  education  in  India,  289. 
Educated  natives,  293 

Elgin,  Lord,  death  of,  246 

Endowments,  private,  in  Indian  Uni- 
versities, 248.  In  English  Uni- 
versities, 249 

England,  existence  of  the  Arable 
Mark  and  Common  Mark  in,  85. 
Various  names  of  the  cultivated 
portion  of  the  domain  in,  85.  True 
succession  groups  of  proprietors  in, 
135.  Waste,  or  common-land, 
has  become  the  Lord's  waste,  135. 
The  modern  legal  theory  of  the 
Lord's  rights,  136.  Advantages 
of  absolute  property  over  the 
village  community  system,  162. 
Relation  of  India  to,  206.  Study 
of  Roman  law  in,  378 

English  in  India,  their  influence  on 
legal  conceptions,  69.  Their  un- 
willing assumption  of  sovereignty, 
70.  Their  establishment  of  Courts 
of  Justice,  71.  A  cause  of  the 
growth  of  the  conception  of  right, 
73 

English  law,  character  of,  299.  Inap- 
plicability of,  300.  Influence  of,  in 
America,  359.  Methods  of  inter- 
pretation, 374.  Characteristic  of 
English  legislation,  374 

Error,  moral  and  scientific,  269 

Eviction  rare  in  India,  186 

Evidence,  law  of,  Indian  legislation, 
295,  297.  Judicial  and  legisla- 
tive power,  296.  Nature  of 
Hindu  and  Mahometan  law,  298. 


FEU 
Character  and  inapplicability  of 
English  law,  299  et  seq.  Influence 
of  English  judicial  system,  299, 
Practical  evils  of  Law  of  Evidence 
in  India,  301.  Circumstantial  and 
direct  evidence,  306.  Facts  of 
issue  and  relevant  facts,  307-309. 
Judicial  and  scientific  methods, 
310.  The  scientific  inquirer  and 
the  Judge,  311.  The  Experimen- 
talist and  the  Judge,  312.  Facili- 
ties which  assist  those  engaged 
in  judicial  investigations,  312. 
Nature  of  a  Law  of  Evidence, 
314.  Rules  of  exclusion  of  Evi- 
dence, 315.  History  of  the 
English  law  of  Evidence,  316, 
319.  Acquisition  of  the  power 
of  cross-examination,  318.  Ex- 
ception to  rules  of  exclusion,  320. 
Judge  and  Jury,  321.  Special 
canons  of  evidence,  322.  Foreign 
systems  of  Evidence,  322.  Eng- 
lish rules  in  India,  324.  India* 
testimony,  326.  Hearsay  evidence 
in  India,  326.  Admission  of  irre- 
levant testimony,  327 
Experts,  legal,  employment  of,  in 
England,  in  modern  times,  170 


"I^AMILY,  the  great  source  of  per- 

-*-  sonal  law,  11.  Formation  of 
the  Patriarchal  Family,  15 

Families,  leading,  causes  of  the  ag- 
grandisement of,  145 

Feudalism,  tendency  in  the  primitive 
Teutonic  system  towards  feudalism, 
21.  Orig'in  of,  IS.  132.  In- 
fluence of  benefices,  132.  The 
Manor,  133.  Causes  of  feudalisa- 
tion,  142,  143.  Growth  of  suze- 
rainues,    144.      Elenenta  of  th« 


4fnj 


INDEX. 


FIC 
feudal    system,  146.     Systematic 
feudalism,  147.     Imperfect  feuda- 
lisation  of  India,  158-160.     Suf- 
fering which  accompanied  feudali- 
eation   in    Europe,   161.     Advan- 
tages which  the  transition  of  one 
form  of  property  to  another  pro- 
duced, 162.     Cultivation  of  waste 
land  in  Europe,  162 
Fiction,  modern  method  of,  290 
Freeman,  Mr.,  his  identification  of 
fragments    of    ancient    Teutonic 
society  in  Switzerland,  9 
French    codes,  elements  of  Roman 
law  in,  356.     Restoi-ation  of,  after 
the  dissolution  of  Empire,  357 


f^  AME  not  strictly  private  property 
^      according  to  English  law,  142 
Grain-dealer,  the,  excluded  in  India 

from  privileges,  107 
Grass-lands,     customs     of     various 

manors  respecting,  136 
Grotius,  treatise  of,  338 


HEADMAN  of  an  Indian  village, 
office  of,  122,  165.  Power 
which  he  enjoys,  155.  Nature 
and  origin  of  the  rights  claimed  by 
certain  families,  156 

Hellenic  origin  of  progress,  238 

Hereditary  offices,  tendency  among 
Teutonic  races  to,  132 

Hermes,  the  three  attributes  of  the 
god,  193 

Hindu  law,  nature  of,  298 

History,  the  truth  of,  264.  Relation 
of  Philosophy  and  Science  to, 
265-267.  Influence  of  new  me- 
thods on,  268 


IND 

TNCLOSURE  and  Inclosure  Acts, 
-^  importance  of  the  history  ol,  85 
India,  village  communities  of,  12  et 
seq.  India  regarded  in  England 
as  uninteresting,  22.  Importance 
of  the  English  conquest  and  go- 
vernment, 23.  Ignorance  of  India 
discreditable  in  Englishmen,  23. 
Gradual  disappearance  of  Indian 
phenomena,  24.  Ignorance  and 
superstition  of  Indian  native  so- 
ciety, 25.  Influence  of  Western 
ideas,  of  physical  ideas,  and  of 
British  dominion,  26,  27.  Eng- 
lish compared  with  Indian  so- 
ciety, 6Q.  Influence  of  caste,  56, 
57.  Influence  of  English  law,  74. 
Discovery  and  recognition  of  the 
existence  of  the  Indian  village 
community,  103.  The  Maho- 
metan theory  of  ownership  in  the 
land,  104.  Conditions  of  agricul- 
ture in  India  as  compared  with 
Europe,  108.  Common  or  waste 
lands  in,  120,  131.  Peaceful  cha- 
racter of  the  people  of,  124.  Theii 
Bubmission  to  the  power  of  mer- 
cenary armies,  124.  The  'out- 
siders' of  Indian  villages,  127 
Shape  taken  by  all  disputes  in, 
128.  Mode  of  dealing  with  a 
newly-annexed  province,  149.  The 
various  land  settlements  and  their 
results,  149-151.  Analogy  between 
Teutonic  kings  and  the  British 
government  in  India,  151.  Ma- 
hometan assumptions,  152.  The 
two  great  Indian  schools  of  opi- 
nion respecting  the  functionaries 
administering  the  country,  153. 
Propfxty  recogni.«!ed  by  the  Eng- 
lish, 156.  Absolute  ownership, 
157.     Comparison  of  English  and 


INDEX. 


407 


IND 
[ndian  Conditions,  159.  Structure 
of  village  communities  in  India, 
175.  Exactions  of  Oriental  sove- 
reigns, 179.  Questions  about  rent, 
180,  181.  Influence  of  the  carry- 
ing trade  in  India,  197.  Dul- 
ness  attributed  to  Indian  topics 
by  Englishmen,  20o.  Continental 
sympathy  for,  205.  Relation  of 
England  to,  206.  Political  results 
of  Oriental  studies,  209.  Materials 
for  new  science  in,  210.  The  anti- 
quities of  Aryan  institutions  due  to 
the  isolation  of  the  country,  211 
et  seq.  Coast  populations  of,  213. 
Ignorance  of  English  ideas  of,  213. 
Characters  of  the  interior  of,  214, 
Social  state  of,  215.  The  influence 
of  religion  and  caste  in,  216  et  seq. 
Discussions  on  ownership,  222. 
Value  of  Indian  phenomena,  224. 
Modem  origin  of  competition,  227. 
Comparative  method  and  custom, 
230.  Difficulty  of  the  govern- 
ment of,  236.  Obstinacy  of  native 
prejudice,  236.  English  influence 
in,  238.  Similarity  between  the 
English  and  Indian  Universities, 
241,  Substitution  of  classical 
for  vernacular  languages  in,  242. 
Ambition  of  the  native  student  to 
write  English,  244.  Missionaries 
in,  246.  Indian  Government  and 
private  endowments,  248.  Aspi- 
rations of  native  students,  252. 
Native  aptitude  for  law,  258.  In- 
tellectual cultivation  in,  272. 
Native  imagination,  275.  Educa- 
tion and  morality  in,  281.  Method 
of  teaching  in,  286.  Mode  of  ac- 
quiring knowledge,  288.  Present 
and  past  education  in,  289,  290. 
Intercourse    between    the    races, 


JUB 

292,  Ancient  and  modern  India 
292.  Educated  natives,  293.  Minute 
on  the  over-legislation  attributed 
to  the  English  Government,'  389 

Indian  Law,  sources  of,  31,  Custo- 
mary law,  31.  Settlement,  32. 
The  Record  of  Rights,  33.  Dis- 
placement of  native  by  English 
law,  37.  Dismay  with  which 
English  law  was  regarded,  38. 
Mode  of  administering  the  Hin- 
doo code,  49-51.  Varieties  of 
native  usage,  51,  52.  Legislation 
of,  295.  Law  of  Evidence,  302. 
Indian  Evidence  Act,  304.  English 
rules  of  law  in,  324.  Hearsay 
evidence  in,  326,  Indian  Testi- 
mony, 326 

Indians,  secrecy  of  their  family  life, 
114.  Their  intellectual  quick- 
ness, 56 

Institutions,  Arvan,  antiquities  of, 
211 

International  Law,  the  undoubted 
parent  of,  193,  Language  of,  351. 
History  of,  352.  Relation  of,  to 
Roman  law,  ,353 

Ireland,  quantity  of  detail  in  the 
ancient  Irish  law,  81,  The  three 
ancient  kinds  of  rent  in,  186, 
187 


JUD.(EA,  Roman  government  of, 
compared  with  British  govern- 
ment of  India,  233-236 
Jurisprudence,  chief  function  of 
Comparative,  3,  4.  John  Austin's 
views,  4,  The  comparative  and 
historical  methods,  6.  Instruction 
■which  India  may  yield  to  th« 
student  of  historical  jurisprudflucui 
15 


406 


INDEX. 


JUS 


Jus  Gentium,  influence  and  impor- 
tance of  the,  193,  194 


T  AING,  Mr.,  on  discoveries  in 
•^  philological  science,  253 
Lammas  lands,  85.  Indosures  re- 
moved on  Lammas  Day,  86 
Land,  Record  of  Rights  in,  72. 
Oldest  forms  of  property  in,  76. 
Scarcity  of  laws  as  to  the  tenure 
of,  61.  Teutonic  origin  of  Eng- 
lish theories  of  law  in,  83.  Un- 
soundness of  the  popular  theory, 
84.  Importance  of  the  history  of 
inclosures  and  inclosure  acts,  85. 
The  ancient  cultivated  portion  of 
the  domain,  and  its  various  names, 
86.  Modes  of  redistributing  the 
shares,  86.  Effect  of  shifting 
severalties,  87.  Great  extent  of 
the  common  fields,  88.  And  of 
the  pasturage  on  baulks  of  turf,  89. 
Existing  baulks,  89.  Vestiges  of 
the  Mark,  88.  Marshall's  account 
of  the  ancient  state  of  England 
quoted,  90-94.  The  Udal  tenures 
of  Orkney  and  Shetland,  94,  95. 
The 'Burgess  Acres  '  in  the  burgh 
of  Lauder,  95.  Mahometan  theory 
of  ownership  in  land,  104.  Lord 
Cornwallis's  settlement  of  Lower 
Bengal,  105.  Estates  in  Oudh, 
105.  Creation  of  a  peasant  pro- 
prietary under  prosperous  condi- 
tions, 105,  106.  Conditions  of 
agriculture  in  India  as  compared 
with  Europe,  108.  Customs  of 
re-partition  of  the  cultivated  lands, 
112.  Common  or  waste  lands  in 
India,  120,  121  The  process  of 
feudalisation,  131.  Benefices,  132. 
The  Manorial    group,    133,  134. 


LAW 

Causes  of  the  growth  of  suze- 
rainties, 144.  Causes  in  German 
and  Scandinavian  cultivating  com- 
munities leading  to  inequality  of 
property  in  land,  140.  L,aud  set- 
tlements in  India,  105,  149-62, 
Ancient  rule  as  to  the  highest 
obtainable  rent  for  the  use  of  land, 

186.  Ancient   Irish    rents,   186, 

187.  Primitive  notions  as  to  price, 
187.  Rarity  of  ancient  transfers 
of  land,  188.  Competition-rent, 
189.  Exchangeableness  of,  in 
India,  228 

Languages,  substitution  of  classical 
for  vernacular  language  in  India, 
242 

Lauder,  the  *  Burgess  Acres '  in  the 
burgh  of,  95,  96.  The  'Hill 
parts,'  96 

Law,  analysis  of  a,  66,  67.  Indian 
conceptions  of  a,  68,  English  in- 
fluence on  legal  conceptions,  09. 
Sources  of,  in  primitive  commu- 
nities, 110.  Training  of  lawyers, 
266.  Popularity  of  legal  studies, 
257.  Native  aptitude  for,  258. 
Definition  of,  259.  Law  of  Nature 
343.  Legal  phraseology,  344. 
Language  of  professional  lawyers, 
345.  English  technicalities,  347. 
Legal  and  legislative  expression, 
34:6.  Improvement  of  technical 
language,  349.  International  law, 
350.  Language  of  international 
law,  351.  English  law  in  America, 
359.  Codification,  362.  Meaning 
of  codified  law,  366.  Interpreta- 
tion of  written  law,  369.  Imper- 
fections of  the  Statute  law  attri- 
buted to  the  proceedings  of  parlia- 
ment,  370.  Council  of  State,  37D. 
Legislative  expression,  372.     Re» 


INDEX. 


409 


LAW 
suits  jf  amending  bills,  373.  Eng- 
lish methods  of  iuterpretation, 
374.  Characteristics  of  English 
legislation,  374.  Meaning  of  the 
word  '  practical,'  376 
Law,  Roman,  revival  of  interest  in, 

330,  Contrasted    with    English, 

331,  335,     Reasons  for  interest  in, 

332,  Importance  of,  333.  Nature 
of,  334.  In  moral  pnd  political 
philosophy,  341,  Relation  of,  to 
international  law,  352.  Techni- 
calities of,  mixed  up  with  questions 
of  diplomacy,  354.  Diffusion  of, 
855.  The  lingua  franca  of  univer- 
sal jurisprudence,  361.  Associated 
with  codification,  362.  Difficulties 
of  the  elements  of,  377,  Study  of, 
in  England,  378.  History  of,  379. 
Process  of,  380,  Relation  of,  to 
Roman  intellect,  382 

Loans,  nature  of,  in  oldest  Roman 

contracts,  188,  189 
Louisiana,  Code  of,  360 
Lubhock,  Sir  John,  on  the  first  steps 

of  mankind   towards  civilisation, 

16,     On  markets,  192 


If  CLENNAN,  Mr.,  on  civilisation, 

Madras,  success  of  the  peasant  pro- 
prietary of,  105 
Mahometan  law,  foundation  of,  49, 

Its    interest    for    the  jurist,   49. 

Nature  of,  298 
Mahometan  theory  of  ownership  of 

land,  104 
Mahratta  brigands,  their  rise  against 

the  Mahometans,  124,     Exactions 

of  their  princes,  179 
Manor,  origin  and  formation  of  the, 

133.     Authority   of  the  Lord  in 


MAR 
the  Court  Baron,  134,  Tene- 
mental lands  and  the  Lord  s  Do- 
main, 1.34,  Rights  of  the  Lord  to 
the  waste,  135,  The  '  light  of 
approvement'  affirmed  by  the 
Statute  of  Merton  and  subsequent 
statutes,  135.  Modern  legal  theory 
of  the  Lord's  rights,  136.  Changes 
in  the  grass-lands,  136.  The 
free  holders  of  Tenemental  land 
corresponding  to  the  old  village 
community,  137.  Settlement  of 
villeins,  138,  The  Manorial  Courts, 
139,  Encroachments  of  the  Lord, 
141.  The  Manorial  group  better 
suited  than  the  village  group  for 
bringing  waste  lands  under  culti- 
vation, 164,  Customary  tillage, 
165 

Manorial  Court,  Customary  power 
of  the,  134 

Manorial  courts,  the  three.  139 

Manu,  Code  of,  20.  Influence  of 
Brahminical  theories  up  n  the,  20. 
Penetrates  but  little  among  the 
peopleof  India,  39.  Development 
of  Hindoo  law,  46,  Mode  of  ad- 
ministering it,  49-51 

Mark,  or  township  of  Teutonic 
families,  10.  System  of  the,  10. 
Ve~t  ges  of  it  in  I'-iiirland,  1 1 

Mark,  the  Arable,  rights  and  duties 
of  the  ancient  Teutons  respecting, 
79,  80.  The  Mark  occasionally 
shifted,  81.  Existence  of  the 
Arable  Mark  in  England,  85 

Mark,  the  Common,  in  ancient  Teu- 
tonic Society,  rights  and  duties  of 
the,  79 

Markets,  origin  of,  192.  Association 
between  markets  and  neutrality, 
193.  Three  ideas  as  to,  19;^ 
Extreme  rule  of  Market  Law,  19^ 


no 


INDEX. 


MAR 
Rule  of  Market  Overt,  195.  Ten- 
dency of  decisions  of  English 
courts  towards  the  law  of  the 
Market,  194.  Causes  which  have 
generalised  a  Rule  of  the  Market, 
197 

Marshall,  Mr.  W.,  his  account  of  the 
ancient  state  of  agriculture  quoted, 
90-94 

Mathematics,  pure  and  mixed,  267 

Maurer,  Von,  on  the  law  of  the  Mark 
or  Township,  10.  On  the  feudal 
tendency  of  the  primitive  Teutonic 
system,  21.  His  inquiry  into  the 
forms  of  Teutonic  village  property, 
summary  of  his  conclusions,  77, 
et  seq. 

Medicine,  progress  of,  260 

Missionaries  in  India,  246 

Moral  philosophy,  schools  of,  337. 
Relation  of,  to  jurisprudence,  342 

Morier,  Mr.,  his  paper  in  '  System 
of  Land  Tenure  in  various  Coun- 
tries,' 78.  His  account  of  the 
vestiges  of  collective  property  in 
Germany,  78.  On  the  aspects  of 
the  Teutonic  freeman  as  a  lord  and 
as  a  commoner,  82 

"Vf  ASSE,  Professor,  on  the  land-law 

•*-^  of  Germany  and  England,  11, 
17.  Account  of  his  work,  168, 
169 

Nature,  law  of,  343 

Neutrality,  ancient  association  be- 
tween markets  and,  193 

Nuncomar,  fairness  of  the  trial  of, 
38 

<ACCUPANCY'  tenants  in  In- 
^  dia,  creation  of,  184.  Period 
of  time  required  for  determining 
who  are,  184 


PRl 

Orkney  Isles,  system  of  the  townshif 
in  the,  10.  Sir  W.  Scott  on  tha 
Udal  tenure,  94 

Oudh,  settlement  of  estates  in,  105. 
Military  character  g.ven  to  the 
naturally  peaceful  population  of, 
124 

Ownership,  absolute,  of  the  English 
in  India,  157-59.  Indian  discus- 
sions on,  222.  Ancient  joint- 
ownership,  226 


PARLIAMENTARY     procedure, 

-^  imperfections  of  the  Statute 
law  attributed  to,  370 

Pascal's  Provincial  Letters,  340 

Paterfamilias,  the,  in  ancient  Teu- 
tonic society,  78.  His  authority, 
78.  His  relations  to  the  other 
heads  of  families,  79.  His  autho- 
rity in  the  Indian  village  commu- 
nity, 107 

Peasant  proprietary  in  India,  esta- 
blishment and  success  of  the,  105 

Personal  Property,  Law  of,  tenden- 
cies of,  194 

Philosophy,  relation  of  history  to, 
265 

Police  of  Indian  villages,  recognised 
and  paid  by  the  British  Govern- 
ment, 125 

Political  Economy,  the  contract  of 
hiring  and  letting  in,  190.  The 
proposition  which  forms  the  basis 
of,  191.  The  Market,  192.  Cap- 
able of  scientific  analysis  and 
measurement,  232 

*  Practical,' meaning  of  the  word,  376 

Price,  early  history  and  measure  o^ 
189 

Prize  of  War,  theoretical  right  of 
the  soverei^  to,  142 


INDEX. 


411 


PEO 

P/oduction,  primitive  tilling  com- 
munities ineffective  for,  166 

Property,  collective,  native  control 
over  testation  of,  41.  Its  impor- 
tance, 220.  Theory  of,  221.  In- 
dian forms  of,  222.  Early  history 
of,  225  et  seq.  Several  property 
and  civilisation,  229 

Pundits,  consulted  in  the  courts,  60. 
Charges  against  them,  50 


"DACE,  modem  theories  of,  14 

-*-*'  Rack-rents  in  ancient  Ireland, 
187.  Generally,  187, 188.  Reason 
why  rack-rents  do  not  exist  in 
some  places,  199 

Raynal's  *  Histoire  Philosophique 
des  Indes,'  213 

Rent,  creation  and  difficulties  of,  in 
India,  180,  181.  Ideas  of  Anglo- 
Indians,  182.  Customary  and 
competition  rents,  183.  Ancient 
rule  as  to  the  highest  obtainable 
rent  for  the  use  of  land,  186. 
Rack-rents  generally,  187,  188. 
Modern  origin  of  the  highest 
obtainable  rent,  198.  The  market 
for  land  in  England  and  Scotland, 
199.  Reason  why  rack-rents  do 
not  exist  in  some  places,  199 

Revenue  courts  and  officers  in  India, 
and  their  duties,  33,  34 

Roman  Law,  period  arrived  at  in,  19. 
Revival  of  interest  in,  330.  Con- 
trasted with  English,  331-335. 
Reasons  for  interest  in,  332.  Im- 
portance of,  333.  Nature  of,  334. 
In  moral  and  political  philosophy, 
341.  Relation  of,  to  international 
law,  352.  Technicalities  of, 
mixed  up  with  questions  of  diplo- 
macy,  354.      Diffusion    of,    355. 


SUP 

The  lingua  franca  of  universal 
jurisprudence,  361.  Associated 
with  codification,  362.  Diffi- 
culties ot  the  elements  of,  377. 
Study  of,  in  England,  378.  His- 
tory of,  379.  Process  of,  380.  Re- 
lation of,  to  Roman  intellect,  382 


CjANSCRIT,  influence  of  the  study 

^  of,  208.  Political  results  of  its 
study,  209 

Science,  relation  of  History  to,  266. 
Effects  of  scientific  method,  209 

Scott,  Sir  Walter,  his  remarks  on 
the  Udal  tenures  of  Orkney  and 
Shetland,  94,  95 

Seignory  in  gross,  134 

Settlement,  Indian,  32.  Settlement 
officers  and  their  reports,  32,  Re- 
cord of  Rights,  and  its  importance, 
33.  Settlement  in  newly-acquired 
provinces  in  India,  149.  Various 
forms  of,  150.  Mahometan  as- 
sumptions, 152 

Shetland  Isles,  system  of  township 
in  the,  10.  Sir  W.  Scott  on  the 
Udal  tenure  of,  94 

Sikhs,  exactions  of  the,  179 

Slavery,  generally,  predial,  and 
under  peasants,  166 

Stephen,  Fitzjames,  his  Law  of 
Evidence  Act,  305 

Students  of  India,  aspirations  of, 
252 

Sudder  courts,  powerful  influence  of 
the  Supreme  courts  over  the,  30. 
History  of,  43.  Appeals  to  them, 
43.  Judges  of  the,  44.  Their  in- 
fluence, 45.  Effect  of  judiciiU 
commentaries  on  the,  47 

Supreme  courts  of  India  and  their 
powers,  36.     Condemnation  which 


419 


INDEX. 


SUB 
they  have    everywhere    received 
except  in    India,   37,  38.     Their 
powerful  influence  on  the  Sudder 
courts,  39 

Surnames,  possible  causes  of  the  fre- 
quency of  trades  as,  in  England, 
126 

Suzerainties,  causes  of  the  groveth  of, 
H4 

Svpitzerland,  Mr.  Freeman's  identifi- 
cation of  fragments  of  Teutonic 
Society  in,  9 


TALUKDARS,  settlement  of  the, 
in   Oudh,  and  its  results,  150, 
151 

Teutonicsociety,fragmentsof  archaic, 
in  Switzerland,  9.  Enquiries  of 
Von  Maurer,  9,  77.  The  Teutonic 
Mark,  10.  The  '  vicus  '  described 
by  Tacitus,  10.  Kesemblances  of 
Indian  village  communities  to 
Teutonic  townships,  12.  Account 
of  an  ancient  Teutonic  cultivating 
community,  78-82.  Tendency 
among  the  Teutonic  races  to  here- 
ditary offices,  132,  Causes  and 
results  of  the  aggrandisement  of 
leading  families,  145 

Townships,  Teutonic.     See  Mark 

Trades,  hereditary,  of  Indian  villages 
125.  Possible  causes  of  the  plen- 
tifulness  and  persistence  of  trades 
as  surnames  in  England,  126 

Tradition,  subject  of,  58.  Effect  of, 
in  India,  58.  Different  forms  of, 
68,  69«  Value  attached  just  now 
to  traditional  law  in  India,  59 

Truth,  physical,  value  and  per- 
manence of,  271,  272.  Infinitv  of, 
273 


VIL 

U DAL  tenures  of  Orkney  and  Shet« 
land,  94,  95 
Usury  laws,  efl'ect  of  the  repeal  ol 

the,  195 
Universities,  similarity  between  the 
Englifcih    and    Indian,   241.     Me- 
diaeval, objects  of  the  students  of, 
280 


VIOUS,  the,  described  by  Tacitus, 
10 
Village  Communities  of  India,  their 
resemblance  to  Teutonic  town- 
ships, 12.  The  land-law  of,  18.  De- 
cay of  the  village  system  in  Lower 
Bengal,  40,  104.  Coincidence  of 
the  systems  of  India  and  Teutonic 
society,  61,  62.  Rights  and  duties, 
67.  Declarations  of  the  council  of 
village  elders,  68,  69.  Discovery 
and  recognition  of  the  existence  of 
the  Indian  village  community,  103. 
The  Mahometan  theory  of  owner- 
ship, 104.  Secrecy  of  Indian 
family  life,  114.  Dislike  of  Eng- 
lish criminal  law,  115.  Legisla- 
ture of  the  council  of  elders,  116, 

123.  Their  customary  rules,  117. 
Causes  of  the  growth  of  Indian 
villages  into  cities,  118,  119. 
Disputes  sometimes  decided  by  a 
single  Headman,  122.  Submission 
of  naturally  peaceful  villagers  to 
the    power  of  mercenary  armies, 

124.  The  village  community  or- 
ganised and  self-acting,  125.  The 
outsiders,  127.  Power  of  absorp- 
tion of  strangers  by  the  commu- 
nity, 128.  Tendency  of  agrarian 
rights  to  decay,  160.  Effect  of 
the  land  settlement  of  Oudh,  150. 
The  office  of  Headman  in  varioui 


INDEX. 


4ie 


places,  165.  Absolute  ownership 
ofthe  English,  157-59.  Imperfect 
feudalisation  of  iLdia,  158-60.  The 
communities  left  to  their  own  way 
by  great  kings  and  mercenary 
armies,  160.  The  cultivating  com- 
munity as  compared  with  the  ab- 
solute property  of  our  own  day, 
164.  Primitive  tilling  communities 
ineffective  for  securing  Px'oduc- 
tion  and  Distribution,  166.  State 
of  the  servile  dependents  of  vil- 
lagers, 166.  Reasons  why  stran- 
gers ceased  to  be  absorbed  by 
villagers,  167,  168.  Structure  of 
Indian  village  communities,  175. 
Divisions  in  the  community  itself, 

176.  Question  of  the  right  of 
property  within  the  community, 

177.  Tradition  as  to  rights,  178. 
Oiigin  and  difficulties  of  rent,  180, 
181.  Analogy  of  the  holders  of 
the  highest  rights  in  India  to 
English  landowners  in  fee  simple, 
184.  Creation  of  '  occupancy ' 
tenants,  184.  Comparison  of  In- 
dian and  English  forms  of  pro- 
perty, 185.  Eviction  rarely  prac- 
tised in  India,  186 


ZEM 

Village  communities  in  North 
America,  organisation  of  the, 
201 

"Village  communities,  Teutonic,  78 
et  seq. 


WASTE,   or  common  lands,  the 
cultivation  of,  demanded  by  a 
growing  population,  162 
Water  rules  in  India,  109,  110 
Widows,   origin   of  the   oppressive 
disabilities  of,  in  Hindoo  laws,  54. 
The  written  restrictions  compared 
with  unwritten  usage,  55 
Will,  the,  of  Lower  Bengal,  40.     A 
modern  Indian  will,  41, 42.     Dan- 
gers caused  by  the  wills  of  un- 
learned testators,  170.  Necessity 
for    restraints    on     testamentary 
power,  171 


REMIND ARS,     their  settlement 

and  its  results,  150,  Their  bad 

reputation  in  Lower  Bengal  aa 
landlords,  163 


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